Opinion
2010-2675 K C
04-02-2012
Flatlands Medical, P.C. as Assignee of CORNELL SMART, Appellant, v. Allstate Insurance Company, Respondent.
PRESENT: : , J.P., RIOS and ALIOTTA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 8, 2010. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor "with relevant knowledge of the claim for a deposition . . . with regard to [defendant's] staged accident defense."
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor "with relevant knowledge of the claim for a deposition . . . with regard to [defendant's] staged accident defense" is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment and granted the branch of defendant's cross motion seeking to compel plaintiff to respond to specified discovery demands and to produce a doctor "with relevant knowledge of the claim for a deposition . . . with regard to [defendant's] staged accident defense."
Although plaintiff established that defendant had not paid plaintiff's claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
As defendant's discovery demands were served with defendant's answer and plaintiff did not timely object to the discovery demands, plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a "staged accident" defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain "whether Plaintiff's assignor received the DME [durable medical equipment] at issue." Defendant's DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor "with relevant knowledge of the claim for a deposition . . . with regard to [defendant's] staged accident defense" is denied.
Weston, J.P., Rios and Aliotta, JJ., concur.