Top Choice Med., P.C. v Republic W. Ins. Co. (2013 NY Slip Op 51108(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 12, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to compel discovery.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff had failed to comply with discovery demands (see CPLR 3212 [f]), and cross-moved, pursuant to CPLR 3126, to compel plaintiff to respond to discovery demands and, pursuant to CPLR 3101 and 3106, to compel plaintiff and its treating physician to appear for examinations before trial. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that in light of plaintiff’s submissions to defendant, including the treating physician’s W-2 form, there was no basis to conclude that additional discovery would lead to relevant evidence.
Contrary to defendant’s assertion on appeal, plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 [*2]AD3d 1168 [2010]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Defendant failed to establish that it had timely denied the claim and, thus, it is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]), including the defense upon which it now relies, that plaintiff’s treating physician was an independent contractor and not an employee of plaintiff (see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 535 [2012]). Moreover, even if defendant had timely denied the claim, it would be precluded from asserting an independent contractor defense by virtue of defendant’s failure to specify this ground for denial in its denial of claim form (see id.; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). Consequently, defendant failed to show that facts essential to justify opposition may exist but cannot be stated and, thus, did not establish any basis to deny plaintiff’s motion pursuant to CPLR 3212 (f).

Accordingly, the order is affirmed, albeit for reasons other than those stated by the Civil Court.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013