Tsatskis v Interboro Mut. Ins. Co.

[*1] Tsatskis v Interboro Mut. Ins. Co. 2015 NY Slip Op 51891(U) Decided on December 15, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1580 S C

Boris Tsatskis, M.D., as Assignee of Afik Azulay, Respondent, -

against

Interboro Mutual Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 26, 2014. The order, insofar as appealed from as limited by the brief, struck defendant's notice of deposition and denied the branch of defendant's motion seeking to compel plaintiff to appear for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant's notice of deposition is reinstated and the branch of defendant's motion seeking to compel plaintiff to appear for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served, with its answer, a notice of deposition of plaintiff and demands for responses to interrogatories and for discovery and inspection of documents. Shortly thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to appear for a deposition on the issue of medical necessity. Plaintiff opposed defendant's motion and cross-moved for summary judgment and for a protective order. As limited by its brief, defendant appeals from so much of an order of the District Court as struck the notice of deposition and denied the branch of defendant's motion seeking to compel plaintiff to appear for a deposition.

CPLR 3101 (a) provides that "[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" (see Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 39 Misc 3d 131[A], 2013 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Defendant established that it had preserved its defense of lack of medical necessity by timely mailing its denial of claim forms, which raised this defense (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Contrary to the District Court's determination, defendant's service of a notice of deposition together with its other discovery demands did not render the notice "procedurally premature." Defendant was not required to show, as a prerequisite to a deposition of plaintiff, that plaintiff's discovery responses were inadequate (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). Indeed, "defendant is entitled to conduct such [deposition] notwithstanding the fact that it had also served plaintiff with other discovery demands" (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3; see CPLR 3102; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th [*2]Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291 [1984]). " The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them' " (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3, quoting Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]; see Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679 [2014]; Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2005]). Here, plaintiff failed to establish that defendant's notice of deposition and other discovery demands constituted an "unreasonable annoyance," would cause unnecessary expense or would otherwise prejudice plaintiff (see CPLR 3103). Consequently, the District Court erred in striking defendant's notice of deposition and denying the branch of defendant's motion seeking to compel plaintiff to appear for a deposition.

Accordingly, the order, insofar as appealed from, is reversed, defendant's notice of deposition is reinstated and the branch of defendant's motion seeking to compel plaintiff to appear for a deposition is granted.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: December 15, 2015