V.S. Med. Servs., P.C. v Kemper Ins. Co.

[*1] V.S. Med. Servs., P.C. v Kemper Ins. Co. 2007 NY Slip Op 51165(U) [15 Misc 3d 144(A)] Decided on June 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-733 Q C.

V.S. Medical Services, P.C. as Assignee of Edwin Garlarza, Appellant,

against

Kemper Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered January 6, 2006. The order granted defendant's motion to compel plaintiff to produce plaintiff's assignor's treating providers and an owner of plaintiff for depositions.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to produce for a deposition Larisa Likver, D.O., an owner of plaintiff, as well as Leonid Livchits, M.D. and Ronald Pasion, a physical therapist, both of whom allegedly treated plaintiff's assignor. Defendant claimed that
there was an issue as to whether Dr. Livchits and Mr. Pasion were employees of plaintiff or independent contractors at the time the treatment was rendered. The court granted defendant's motion and this appeal ensued.

Although the claim forms submitted by plaintiff indicate that Dr. Livchits and Mr. Pasion were independent contractors when the treatments were rendered, plaintiff insists that these were typographical errors and that they were in fact employees of plaintiff. In support of its assertion, plaintiff annexed what purports to be W-2 forms issued by plaintiff to Dr. Livchits and Mr. Pasion. Inasmuch as CPLR 3101 (a) states, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . [*2]a party, or the officer, director, member, agent or employee of a party," the court properly ordered plaintiff to produce Dr. Likver, Dr. Livchits and Mr. Pasion for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists]). To the extent plaintiff argues for the first time on appeal that it does not control the witnesses, such a
conclusory allegation is dehors the record (cf. A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U], supra).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 4, 2007