S.J. Pahng, M.D., P.C. v AutoOne Ins. Co.

[*1] S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. 2017 NY Slip Op 51513(U) Decided on November 3, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2842 Q C

S.J. Pahng, M.D., P.C., as Assignee of Jin Hee Ma, Respondent,

against

AutoOne Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Richard W. Shin, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 6, 2014. The order, insofar as appealed from as limited by the brief, denied 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, the branch of defendant's motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of a motion by defendant seeking to compel plaintiff to appear for an examination before trial (EBT).

As defendant's moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant's lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant's motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

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 granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017