Decided on March 22, 2019

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 16, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered December 16, 2016, the Civil Court granted defendant’s motion. Plaintiff’s sole argument on appeal is that defendant’s motion should have been denied because plaintiff objected to defendant’s EUO demands and defendant failed to establish that the demands were reasonable.

The record reflects that plaintiff, in effect, objected to defendant’s EUO scheduling letters in connection with assignor Rosemary Leon on the ground that the letters did not set forth the objective standards on which the EUO demands were based or sufficiently specify the reasons for the demands, and further requested that defendant provide both the objective standards and reasons for the demands. Since plaintiff failed to submit proof that it had mailed an objection letter in connection with assignor Adris Maria, plaintiff’s argument with respect to that assignor lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant was not required to provide the reason for its demand for an EUO in response to an objection from plaintiff. “No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the [*2]regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The Department of Financial Services’^[FN1] interpretation of the No-Fault Regulations is entitled to deference unless that interpretation is ” ‘irrational’ ” or ” ‘unreasonable’ ” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006], quoting Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Since defendant was not required to provide—either in its scheduling letters or in response to an objection from plaintiff—the reason for its demand or the objective standards upon which its EUO demands were based, and since that is the only ground for plaintiff’s appeal, there is no basis to disturb the order appealed from.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

Footnotes

Footnote 1:In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services.”

Decided on March 22, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of James F. Sullivan, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 2, 2016. The order granted the branch of defendant’s cross motion seeking to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

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, and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to hold the action in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. By order entered May 2, 2016, the Civil Court granted the branch of defendant’s cross motion seeking to hold the action in abeyance. Plaintiff appeals.

Defendant proffered sufficient evidence to support its contention that there is an issue of fact as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since primary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board, it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro [*2]v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). In the case at bar, the Civil Court correctly recognized that the issue of eligibility for workers’ compensation benefits must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; New Millennium Radiology, P.C., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U]) before the court considers whether plaintiff is entitled to recover first-party no-fault benefits.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Decided on March 8, 2019

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

Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Law Firm of Natalia Skvortsova, PLLC (Natalia Skvortsova and Pryanka Arora of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 1, 2016. The order denied defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

This action, commenced in 2010, involved numerous discovery disputes, during which, among other things, plaintiff’s owner, Dr. John McGee, was ordered to appear for a deposition. After that deposition and further discovery, certain of plaintiff’s claims were dismissed based on plaintiff’s “failure to comply in good faith with defendant’s discovery demands.” In 2014, Dr. McGee was ordered to appear for a second deposition, this time on the issue of whether plaintiff was in violation of state licensing requirements prohibiting nonphysicians from owning or controlling medical service corporations, “i.e. [whether] Dr. John McGee is plaintiff’s bona fide owner & operator” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 42 Misc 3d 30, 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013], affd 150 AD3d 192 [2017], lv granted 2017 NY Slip Op 90794[U] [2017]). At that deposition, Dr. McGee testified that he was plaintiff’s owner and sole physician, and that he performed medical and managerial tasks for plaintiff. Over defendant’s objection, and on the advice of plaintiff’s counsel—based upon her claim that, in essence, the questions [*2]were irrelevant—Dr. McGee refused to answer several questions, including those pertaining to other medical service corporations which Dr. McGee either admittedly or allegedly owned or operated during the time plaintiff was in operation, and Dr. McGee’s involvement with those corporations, including his hours and duties at those corporations.

Defendant subsequently moved to strike the complaint and dismiss the action, based on Dr. McGee’s refusal to answer questions and on plaintiff’s alleged spoliation of evidence. The Civil Court denied defendant’s motion, stating, among other things, that the questions at issue were “outside the scope of the deposition due to the fact that they had nothing to do with the plaintiff corporation.”

Contrary to the finding of the Civil Court, the questions at issue were “designed to elicit information which was material and necessary to the appellant’s defense of this action” (Parker v Ollivierre, 60 AD3d 1023, 1024 [2009]), as Dr. McGee’s involvement in other medical service corporations, including how much time he spent at those entities, could necessarily affect his involvement in the daily activities and management of plaintiff, and were relevant to whether Dr. McGee was plaintiff’s “bona fide owner [and] operator.” Moreover, counsel’s “directions not to answer [the questions at issue] were not otherwise authorized by [Uniform Rules for the Conduct of Depositions] 22 NYCRR [§] 221.2” (id. at 1024). In light of plaintiff’s failure to fully comply with discovery over many years, plaintiff’s refusal to answer the questions at issue may be presumed to be willful and contumacious (see e.g. Honghui Kuang v MetLife, 159 AD3d 878 [2018]); therefore, a sanction is warranted. Given that certain of plaintiff’s claims have already been struck based upon its noncompliance with discovery and that Dr. McGee has already been deposed twice, we find that striking plaintiff’s complaint is the appropriate sanction (see id.).

Accordingly, the order is reversed and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Law Office of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 18, 2016. The order granted defendant’s motion for leave to amend its answer and, upon amendment, for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits for services it had rendered to its assignor, defendant moved for leave to amend its answer to assert the affirmative defense of collateral estoppel and, upon amendment, for summary judgment dismissing the complaint. By order dated January 7, 2016, the Civil Court granted defendant’s motion.

In support of the branch of defendant’s motion seeking leave to amend its answer to assert the affirmative defense of collateral estoppel, defendant argued that an April 2014 arbitrator’s decision had found that plaintiff could not recover no-fault benefits because it was not a licensed professional medical corporation in the State of New York. Leave to amend a pleading “shall be freely given” absent prejudice or surprise resulting from the delay (CPLR 3025 [b]). Mere lateness is not a barrier to an amendment; rather, significant prejudice must be demonstrated to justify the denial of an application for an amendment (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Contrary to plaintiff’s arguments, plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to the answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), or to establish that defendant had waived its right to assert the defense. Consequently, the Civil Court properly granted the branch of defendant’s motion seeking leave to amend its answer.

With respect to the branch of defendant’s motion seeking summary judgment based on the [*2]doctrine of collateral estoppel, plaintiff’s argument on appeal as to why the doctrine of collateral estoppel does not apply in the case at bar is, essentially, that it cannot be determined if the issues to be litigated were substantially similar because defendant failed to include in its motion the evidence and documents submitted by the parties at the arbitration. In view of the fact that plaintiff does not point to any ambiguity in the arbitrator’s decision, or any distinction between the facts of this case and those underlying the arbitration, or any other meritorious argument, plaintiff has presented no basis to disturb so much of the order of the Civil Court as, upon amendment of the answer, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.