New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 27, 2012
ALL BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF KAMINI RAMNARINE, APPELLANT,
AUTO ONE INS. CO., RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 5, 2010.
P.C. v Auto One Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ .
The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to respond to defendant's discovery demands.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying its motion for summary judgment and granting defendant's cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to provide defendant with, among other things, verified responses to its discovery demands "including 1099s, K-1s & W2s showing distributions . . ., proof of payment for spaces used and lease agreements, management agreements (and) corporate tax returns."
While plaintiff argues that defendant is not entitled to the discovery
ordered by the court, inasmuch as plaintiff failed to timely challenge
the propriety of defendant's notice for discovery and inspection (see
CPLR 3122 [a]) or timely object to defendant's "demand for verified
written interrogatories" (see CPLR 3133 [a]), plaintiff is 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 ; Marino v County of Nassau, 16 AD3d 628 ;
Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App
Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20
Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med.
Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).
To the extent the discovery demands concern matters relating to defenses which defendant is
precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not
specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great
Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B.
Med. Servs. PLLC, 11 Misc 3d 71).
Defendant set forth detailed and specific reasons for its belief that
plaintiff may be ineligible to recover assigned first-party
no-fault benefits because it is a professional service corporation
which fails to comply with applicable state or local licensing laws
(see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 ), a
defense which is not precluded (Bath Med. Supply, Inc. v Allstate
Indem. Co., 27 Misc 3d 92 [App Term, 2d, 11th & 13th Jud Dists 2010]). By obtaining discovery of the documents directed by the
Civil Court, defendant will be able to ascertain whether plaintiff is ineligible to recover
assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care,
P.C., 54 AD3d 738 ). Plaintiff's remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 27, 2012
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