J.K.M. Med. Care, P.C. v USAA Gen. Indem. Co.

[*1] J.K.M. Med. Care, P.C. v USAA Gen. Indem. Co. 2018 NY Slip Op 50818(U) Decided on June 1, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2000 K C

J.K.M. Medical Care, P.C., as Assignee of Diaz-Veras Carlos Emmanuel, Appellant,

against

USAA General Indemnity Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Linda A. Mule of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2015. The order, insofar as appealed from, granted a motion by defendant to the extent of striking the notice of trial and compelling plaintiff to provide responses to specified discovery demands.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted a motion by defendant to the extent of striking the notice of trial and compelling plaintiff to "provide verified responses and documents responsive to defendant's demands for" discovery relevant to a defense interposed pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]).

While plaintiff argues that defendant is not entitled to the discovery ordered by the Civil Court, plaintiff failed to timely challenge the propriety of the discovery demands (see CPLR 3122 [a]), and is therefore obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are palpably improper and may not be discoverable, the defense at issue in this case is, contrary [*2]to plaintiff's argument, not precludable (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2017]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018