Opinion
No. 570718/11.
2012-06-25
POMONA MEDICAL DIAGNOSTIC P.C. a/a/o Kevin Dalberiste, Plaintiff–Appellant, v. ADIRONDACK INSURANCE COMPANY, Defendant–Respondent.
Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated March 30, 2011, as granted defendant's motion to strike the notice of trial and compel discovery.
Present: HUNTER, JR., J.P., SHULMAN, TORRES, JJ.
PER CURIAM.
Order (Jose A. Padilla, J.), dated March 30, 2011, insofar as appealed from, reversed, with $10 costs, and motion denied.
The defendant insurer's motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper ( see Duhe v. Midence, 1 AD3d 279 [2003] ), since defendant cannot properly rely on this defense as a basis to deny plaintiff's no-fault claim ( see11 NYCRR 65–3.12[b]; M.N. Denatal Diagnostics, PC v. Government Empl. Ins. Co., 81 AD3d 541 [2011] ). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue ( cf. One Beacon Ins. Group, LLC v. Midland Med. Care, PC, 54 AD3d 738 [2008] ). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v. Pfizer Inc., 58 AD3d 138, 144 [2009],lv denied12 NY3d 703 [2009] ).