Moshe v Country-Wide Ins. Co.
Annotate this CaseDecided on July 16, 2018
District Court of Nassau County, First District
Yan Moshe and EXCEL SURGERY CENTER, LLC, Plaintiff(s),
against
Country-Wide Insurance Company, Defendant(s).
CV-003560-17
Attorneys for Plaintiffs: The Russell Friedman Law Group, LLP, 3000 Marcus Ave., Suite 2E03, Lake Success, NY 11042 (516) 355-9696
Attorneys for Defendants: Thomas Torto, Esq., 419 Park Ave. South, New York, NY 10016 (212) 532-5881
Ignatius L. Muscarella, J.
The following papers have been considered by the Court on this motion submitted May 30, 2018
____________________________________________________________________
Papers Numbered
Defendant's correspondence dated 2/23/18 w/ annexed supporting papers 1
Plaintiff's Memorandum of Law in opposition dated 5/15/18 2
Defendant's reply correspondence dated 5/29/18 3
_____________________________________________________________________
By handwritten Stipulation signed by counsel and "So Ordered" by this court on January 18, 2018 a prior disclosure related motion was withdrawn and a submission schedule was entered into to allow consideration of "the sole remaining disclosure issue" without the need to re-notice a new motion or amend the motion being withdrawn. As characterized by the so ordered stipulation said issue is "whether or not defendant is entitled to depose plaintiff Yan Moshe (Moshe) pursuant to defendant's Notice to Take his deposition which notice is objected to by plaintiff".
Thus, before this court is what may be deemed defendant's motion to compel the deposition of Moshe (see generally CPLR 3124; see also CPLR 3103(a)).
Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe's appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is owner.
There is no dispute that pursuant to the relevant provisions governing EUO's involving first-party no-fault insurance claim(s) the deponent is entitled to "loss of [*2]earning" caused by attendance at the EUO (22 NYCRR § 65-3.5[e]).
As alleged in plaintiffs' complaint, on or about November 6, 2015 - prior to the November 10, 2015 EUO - counsel for Excel advised counsel for Country-Wide Insurance Company (Country-Wide) that Moshe claimed a loss of earnings of $12,186.14 (Complaint at ¶ 24). In support thereof, and as previously requested by Country-Wide's counsel (Complaint at ¶ 22), Excel's counsel provided a redacted copy of Moshe's 2014 joint federal tax return which showed $320,000.00 in "Wages, salaries tips, etc." and an additional $2,604,942.00 in "Rental real estate, royalties, partnerships, S corporations, trusts, etc." (Complaint at ¶ 24; defendant's Exhibit D [tax return][FN1] . Despite demand for confirmation that full payment would be made at the conclusion of the deposition (Complaint at ¶ 24), Country-wide neither committed to payment nor rejected same (Complaint at ¶ 26). Instead, following the EUO, on or about March 10, 2016 Country-Wide remitted $1,280.00 as its calculation of Moshe's loss of earnings (Complaint at ¶ 36).
The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe's demand ($12,186.14) and Country-Wide's payment ($1,280.00). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a "second" deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due him for his loss of earnings incurred by his appearance at first deposition.
Plaintiffs oppose defendant's current notice to again depose plaintiff Moshe contending that the first deposition should have included the "loss of earnings" issue. In effect, plaintiffs would have this court find that defendant's failure to address the loss of earnings issue in the context of the first-part no-fault claim constitutes a waiver of defendant's right to now depose him in the context of this action.
The issue appears to be one of first impression.
It is beyond cavil that the purpose of an EUO of a medical provider in the context of a claim for first-party no-fault benefits is to obtain discovery material and necessary to the defense said claim (North Bronx Med. Health Care v Auto One Ins. Co., 53 Misc 3d 148(A) | 48 N.Y.S.3d 266, 2016 NY Slip Op 51625(U) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], citing inter alia CPLR 3101[a]). Accordingly, this was the subject of the examination conducted by defendant on November 10, 2015 and defendant carrier will not be faulted for limiting its deposition to the issues for which the deposition was properly sought.
While 22 NYCRR § 65-3.5[e] establishes and safeguards a medical provider's right to be paid for appearing at an EUO upon a claim for first-party no-fault benefits, the governing provisions of this section speak in terms of reimbursement. It has accordingly been held that a deponent may not seek a flat, up front fee before appearing (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 38 N.Y.S.3d 832, 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th [*3]& 13th Jud Dists 2016] citing 11 NYCRR 65-3.5 [e]). In view of same, the failure of defendant to agree upon the amount of payment in advance of the EUO despite plaintiffs' efforts in this regard is of no consequence.
That a dispute might have been anticipated over the sufficiency of defendant's eventual calculation of deponent's loss of earnings does not serve to broaden the scope of that deposition beyond the then pending no-fault benefits claim. Rather, the parties inability to agree on the amount to be reimbursed rendered the within plenary action the appropriate vehicle for adjudication of this ongoing dispute.
With the commencement of a plenary action comes the defendant's entitlement to relevant discovery in defense thereof (CPLR § 3101[a]).
Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 22 NYCRR § 65-3.5[e]. This is so regardless of which party ultimately prevails in fixing the amount of Moshe's loss of earnings for his appearance at the first deposition.
CPLR § 3103 provides that "[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant's right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.
Accordingly, in the discretion of the court plaintiffs are awarded a protective order against the deposition of Yan Moshe. However, defendant may serve interrogatories upon plaintiffs (see CPLR § 3130, et seq).
To insure that this action does not languish, interrogatories shall be served within 30 days of receipt of a copy of this order from any source. Responses shall be served within 20 days thereafter in accordance with CPLR § 3133.
This action shall appear on the conference calendar of this court District Court, Nassau County, Civil Part 3, Room 259, 99 Main Street, Hempstead, New York 11550 on September 21, 2018. The parties shall appear on that date at 9:30 AM with authority to pursue settlement, and if unsuccessful, to schedule either remaining disclosure or a trial date.
All parties are forewarned that the unexcused failure to attend a scheduled court date may result in dismissal of the action or judgment by default(and inquest(see 22 NYCRR 212.14).
SO ORDERED:
Hon. Ignatius L. Muscarella
District Court Judge
Dated: July 16, 2018 Footnotes
Footnote 1:Although the reported figures are for both Moshe and his spouse, plaintiff's counsel maintains that all but $120,000 in the combined income shown on the joint return belongs to Moshe (Memo of Law at p. 5).
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