December 15, 2015

Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))

https://www.beynensonlaw.com/case-law/tsatskis-v-interboro-mut-ins-co-2015-ny-slip-op-51891u/

Court: Appellate Term, Second Department
Decided: December 15, 2015
Citation: 2015 NY Slip Op 51891(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure
Legal questions: Proof of mailing (see the maps)

Cite as

Tsatskis v Interboro Mut. Ins. Co., 2015 NY Slip Op 51891(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2015)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses. The insurer served a deposition notice with its answer and other discovery demands, then moved to compel the provider's appearance. Under CPLR 3101 (a) and CPLR 3102, disclosure devices have no prescribed order of priority, and simultaneous written demands did not make the deposition premature. The provider failed to show unreasonable annoyance, unnecessary expense or prejudice warranting protection under CPLR 3103. The Appellate Term, Second Department, reversed the order, insofar as appealed from, reinstated the insurer's deposition notice and granted the branch of its motion to compel the deposition.

Reported in New York Official Reports at Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Boris Tsatskis, M.D., as Assignee of Afik Azulay, Respondent,
against
Interboro Mutual Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 26, 2014. The order, insofar as appealed from as limited by the brief, struck defendant’s notice of deposition and denied the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant’s notice of deposition is reinstated and the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served, with its answer, a notice of deposition of plaintiff and demands for responses to interrogatories and for discovery and inspection of documents. Shortly thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to appear for a deposition on the issue of medical necessity. Plaintiff opposed defendant’s motion and cross-moved for summary judgment and for a protective order. As limited by its brief, defendant appeals from so much of an order of the District Court as struck the notice of deposition and denied the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof” (see Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 39 Misc 3d 131[A], 2013 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Defendant established that it had preserved its defense of lack of medical necessity by timely mailing its denial of claim forms, which raised this defense (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Contrary to the District Court’s determination, defendant’s service of a notice of deposition together with its other discovery demands did not render the notice “procedurally premature.” Defendant was not required to show, as a prerequisite to a deposition of plaintiff, that plaintiff’s discovery responses were inadequate (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). Indeed, “defendant is entitled to conduct such [deposition] notwithstanding the fact that it had also served plaintiff with other discovery demands” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3; see CPLR 3102; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th [*2]Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291 [1984]). ” The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them’ ” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3, quoting Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]; see Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679 [2014]; Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2005]). Here, plaintiff failed to establish that defendant’s notice of deposition and other discovery demands constituted an “unreasonable annoyance,” would cause unnecessary expense or would otherwise prejudice plaintiff (see CPLR 3103). Consequently, the District Court erred in striking defendant’s notice of deposition and denying the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s notice of deposition is reinstated and the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition is granted.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: December 15, 2015

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer established timely mailing of its medical-necessity denials, preserving that defense and supporting its entitlement to depose the provider.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Jamaica Med. Plaza, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50475(U))The insurer was entitled to a provider deposition material and necessary to its defense, but factual disputes barred summary judgment.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U))The insurer's cross motion for summary judgment on IME nonappearance was upheld upon sufficient proof of mailing of the requests.
New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51396(U)) FollowedAn insurer pursuing a Mallela defense may depose a provider's owner without first showing that interrogatory responses are inadequate.
First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))The provider's notice of trial was properly vacated because its certificate of readiness incorrectly stated that discovery was complete or waived.
Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350)A timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.

Similar decisions

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U))The treating provider's deposition was material and necessary to the insurer's medical necessity defense despite a pending summary judgment motion.
Flatlands Med., P.C. v Allstate Ins. Co. (2012 NY Slip Op 50582(U))A provider's failure to object timely to discovery demands does not require disclosure of privileged or palpably improper matters.
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U))An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.
Huntington Regional Chiropractic, P.C. v Mercury Cas. Co. (2015 NY Slip Op 51900(U))The provider raised a medical-necessity issue but could not avoid a material and necessary deposition by serving written discovery responses.
Jj & R Chiropractic, P.C. v Interboro Mut. Indem. Ins. (2017 NY Slip Op 51201(U))The provider's deposition noncompliance warranted testimony preclusion rather than dismissal within the motion court's discretion.