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Atl. Radiology Imaging, P.C. v. Interboro Mut. Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Jun 23, 2016
2016 N.Y. Slip Op. 51014 (N.Y. App. Term 2016)

Opinion

2013–2390 K C.

06-23-2016

ATLANTIC RADIOLOGY IMAGING, P.C., as Assignee of Mohammad Feroz, Respondent, v. INTERBORO MUTUAL INS. CO., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered September 13, 2013. The order, insofar as appealed from, denied the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial (EBT).

As defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's defense (see Great Wall Acupuncture, P.C. v. General Assur. Co., 21 Misc.3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] ), the branch of defendant's motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101[a] ).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

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


Summaries of

Atl. Radiology Imaging, P.C. v. Interboro Mut. Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Jun 23, 2016
2016 N.Y. Slip Op. 51014 (N.Y. App. Term 2016)
Case details for

Atl. Radiology Imaging, P.C. v. Interboro Mut. Ins. Co.

Case Details

Full title:Atlantic Radiology Imaging, P.C., as Assignee of Mohammad Feroz…

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

Date published: Jun 23, 2016

Citations

2016 N.Y. Slip Op. 51014 (N.Y. App. Term 2016)
41 N.Y.S.3d 448