W & Z Acupuncture, P.C. v Unitrin Auto & Home Ins. Co.

[*1] W & Z Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. 2012 NY Slip Op 52400(U) Decided on December 21, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2452 K C.

W & Z Acupuncture, P.C. as Assignee of BENJAMIN ANDRA, Appellant,

against

Unitrin Auto & Home Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered June 29, 2010. The order, insofar as appealed from, granted, to a limited extent, 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, and the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial (EBT) to the extent of compelling plaintiff to appear for an EBT limited to the issue of the relationship between plaintiff and the treating acupuncturists.

In an affirmation in support of defendant's motion to compel, defendant's attorney argued that the treating acupuncturists were not plaintiff's employees; rather, they were independent [*2]contractors and, therefore, plaintiff was ineligible to recover the assigned no-fault benefits at issue. However, defendant's denial of claim forms did not deny plaintiff's claims on the ground that the treatment at issue had been rendered by independent contractors. Therefore, defendant is precluded from asserting that ground for denial of coverage as a defense in this litigation (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2012 NY Slip Op 06902 [2d Dept, Oct 17, 2012]). Consequently, the branch of defendant's motion seeking to compel plaintiff to appear for an EBT in support of this defense should have been denied, as this discovery demand is palpably improper (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] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012