Maria S. Masigla, P.T., as Assignee of Bony, Bergomi, Appellant,
United Services Automobile Association, Respondent.
Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.
Nissan Yehuda, Esq., for respondent.
PRESENT:: DAVID ELLIOT, J.P., MICHAEL L. PESCE, THOMAS P.
from an order of the Civil Court of the City of New York,
Queens County (Jodi Orlow, J.), entered December 18, 2014.
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
defendant's discovery demands, to the extent of
compelling plaintiff to respond to certain of defendant's
that the order, insofar as appealed from, is modified by
providing that the branch of defendant's cross motion
seeking to compel plaintiff to provide her federal and state
tax returns for 2012 is denied; as so modified, the order,
insofar as appealed from, is affirmed, without costs.
action by a provider to recover assigned first-party no-fault
benefits, plaintiff appeals from an order of the Civil Court
which 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 defendant's discovery demands to
the extent of compelling plaintiff to provide defendant with
"plaintiff's federal and state tax returns for 2012,
plaintiff's payroll tax filings & NYS quarterly
withholdings for 2012 as well as any and all lease
agreements, rental and/or ownership agreements for the
motion for summary judgment was properly denied, since the
proof submitted by plaintiff failed to establish that the
claims at issue had not been timely denied (see Viviane
Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25
N.Y.3d 498 ), or that defendant had issued timely
denial of claim forms that were conclusory, vague or without
merit as a matter of law (see Westchester Med. Ctr. v
Nationwide Mut. Ins. Co., 78 A.D.3d 1168');">78 A.D.3d 1168 ; Ave
T MPC Corp. v Auto One Ins. Co., 32 Misc.3d 128');">32 Misc.3d 128 [A],
2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th &
13th Jud Dists 2011]).
argues that defendant is not entitled to the discovery
ordered by the Civil Court. However, as plaintiff failed to
timely challenge the propriety of the discovery demands
(see CPLR 3122 [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 A.D.3d 520');">17 A.D.3d 520 ; Marino v County of
Nassau, 16 A.D.3d 628');">16 A.D.3d 628 ; Midborough
Acupuncture, P.C. v State Farm Ins. Co., 21 Misc.3d 10');">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, that plaintiff is not entitled to collect no-fault
benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to a
failure to meet licensing requirements (see State Farm
Mut. Auto. Ins. Co. v Mallela, 4 N.Y.3d 313');">4 N.Y.3d 313 ), is
not precludable (see Matter of Acuhealth Acupuncture,
P.C. v Country-Wide Ins. Co., 149 A.D.3d 828');">149 A.D.3d 828 ).
is a natural person, and defendant has failed to establish
its entitlement to her federal and state tax returns, since
"[i]t is well settled that tax returns are generally not
discoverable in the absence of a strong showing that the
information is indispensable to the claim and cannot be
obtained from other sources" (Altidor v State-Wide
Ins. Co., 22 A.D.3d 435, 435-436  [internal
quotation marks omitted]; see also Benfeld v Fleming
Props., LLC, 44 A.D.3d 599, 600 ). However,
plaintiff has not demonstrated that the remaining items at
issue are privileged or palpably improper.
the order, insofar as appealed from, is modified by providing
that the branch of defendant's cross motion seeking to
compel plaintiff to provide her ...