Huntington Regional Chiropractic, P.C. v Mercury Cas. Co.

[*1] Huntington Regional Chiropractic, P.C. v Mercury Cas. Co. 2015 NY Slip Op 51900(U) Decided on December 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2014-1472 N C

Huntington Regional Chiropractic, P.C. as Assignee of Luis Menendez, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), dated June 9, 2014. The order denied defendant's motion for summary judgment dismissing the complaint, or, in the alternative, to compel a deposition of plaintiff.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking to compel a deposition of plaintiff is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for a deposition and preclude plaintiff from offering evidence in the event plaintiff failed to appear for such deposition. Plaintiff opposed the branch of the motion seeking summary judgment dismissing the complaint on the ground that triable issues of fact exist as to the medical necessity of the services at issue. In opposition to the branch of defendant's motion seeking to compel a deposition, plaintiff argued that, since it had provided written responses to defendant's discovery demands, the demand for a deposition was unduly burdensome. By order dated June 9, 2014, the District Court denied defendant's motion.

Defendant established that the denial of claim forms, which denied the claims on the ground of lack of medical necessity, had been timely mailed (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]). While the sworn report by the chiropractor/acupuncturist who had performed an independent medical examination set forth a factual basis and medical rationale for his opinion that there was a lack of medical necessity for the services at issue, plaintiff proffered a chiropractor's affidavit in opposition, which affidavit was sufficient to raise a triable issue of fact as to whether the services were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the District Court properly denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

With respect to the branch of defendant's motion seeking to compel a deposition of plaintiff, CPLR 3101 (a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Parties to an action are [*2]entitled to reasonable discovery "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Here, the deposition of plaintiff was material and necessary to defendant's defense of the action (see Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51133[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). We note that plaintiff's contention that a deposition was unnecessary because plaintiff had served written responses to defendant's discovery demands lacks merit (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]; cf. Ralph Med. Diagnostics, PC v Mercury Cas. Co., 43 Misc 3d 65 [App Term, 1st Dept 2014]). Consequently, the branch of defendant's motion seeking to compel plaintiff to appear at a deposition should have been granted. Accordingly, the order is modified by providing that the branch of defendant's motion seeking to compel a deposition of plaintiff is granted.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: December 18, 2015