RLC Med., P.C. v Allstate Ins. Co.

[*1] RLC Med., P.C. v Allstate Ins. Co. 2010 NY Slip Op 51962(U) [29 Misc 3d 134(A)] Decided on November 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1487 K C.

RLC Medical, P.C. as Assignee of GORDON DOUGLAS, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered August 11, 2008. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition.

ORDERED that the order is reversed, without costs, defendant's cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition is granted, plaintiff is directed to produce Dr. Collins for a deposition within 60 days of the date of the order entered hereon, or on such other date to which the parties shall agree, and plaintiff's
motion for summary judgment is denied without prejudice to renewal upon the completion of Dr. Collins' deposition.

In this action by a provider to recover assigned first-party no-fault benefits, defendant sought various forms of discovery. Plaintiff subsequently moved for summary judgment. Defendant opposed the motion and cross-moved to compel plaintiff to produce Dr. Ronald Collins, plaintiff's owner, for a deposition. The Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion. The instant appeal by defendant ensued.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

In opposition to plaintiff's motion, and in support of its cross motion to compel discovery, defendant established that facts may exist which are essential to oppose plaintiff's summary judgment motion but which could not then be stated (see CPLR 3212 [f]). Defendant indicated that it could not set forth sufficient facts to establish one of its defenses, to wit, plaintiff's alleged fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), since such information was within plaintiff's possession and plaintiff had not complied with defendant's notice to produce Dr. Collins for a deposition. In addition, defendant established its entitlement to depose Dr. Collins (see CPLR 3101 [a]; RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sharma Med. Servs., P.C. v [*2]Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire and 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, plaintiff's motion for summary judgment is denied without prejudice to renewal following the completion of Dr. Collins' deposition, and defendant's cross motion for an order compelling plaintiff to produce Dr. Collins for a deposition is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010