EBT deniedMarch 10, 2014

Ralph Med. Diagnostics, PC v Mercury Cas. Co., 2014 NY Slip Op 24054 (App. Term 1st Dept. 2014)

Well, the CPLR does not apply to no-fault, according to the Appellate Term, First Department.  Zlatnick has been revived, and treating healthcare practitioners do not have to sit and be asked about why the performed the billed for medical services.

For anyone who thinks you get nothing out of a physician EBT (except preclusion for no-shows), then you have never properly deposed a treating healthcare practitioner.  I have two transcripts in my office where the treating healthcare practitioners tanked their cases.  One said the injuries might not have been related to the injury (substantiating our radiologist’s review of the films); the other one said he never read the IME report that he disagreed with in his affidavit of merit.  Before that, I remember a “Fee schedule expert” admitting at a deposition that she had no medical training and could not opine with a reasonable degree of coding certainty that the bills were improperly reduced.

So against that backdrop, I have to say the gentlemen on the fourth floor in Room 408 at 60 Centre Street just do not get it.  Maybe, I just do not get it.

“In the realm of no-fault litigation, a defendant insurer “is not entitled to serve an EBT notice, in knee-jerk fashion … without demonstrating why responses to written interrogatories [and a document demand] were somehow lacking. Any other result would … subvert the purpose of no-fault laws …, [viz.,] the prompt payment of first-party benefits … [and unduly] magnify the expense of litigation” (Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co., 2 Misc 3d at 353).”

The answer to Justice Markey’s riddle, which was resurrected in this case is simple: AAA arbitration.  It is cheap, effective and quite lethal to the carriers.  And the  best part about it: there is no discovery.

This case will be at the Appellate Division.

8 Responses

  1. Captain America says:

    You just don’t get it do ya.

    And finally a court got it.

    Look you want to forget about prompt payment then I want to forget about it. But that renders no fault which stole your right to sue an idiot for rear ending you while texting, putting on makeup or combing their beard and eating — all at the same time; you can’t sue him — it renders no fault unconstitutional.

    The illusion of prompt payment.

    The only prompt payment is the premium payment.

    So take away prompt payment but also take away this horribly unconstitutional garbage … boon to the wealthy insurance companies … called Big Fauk … I mean No Fault.

    Enjoy another horrible American moment in the land of the dumb and the home of the enslaved.

  2. kurt lundgren says:


    Don’t you love the Cap?!?!

    On the issue at hand, carriers have the opportunity to EUO. They often use it as a sword and shield. Its abused. Do you really expect the Courts to order an EBT of a doctor on a medical necessity issue? The carrier had its shot to verify the claim. Moreover, it had its IME/Peer.

    How many bites of the apple should the carrier get?

    The CPLR still applies in no fault. It applies when the request for discovery is material and necessary. The hope that an EBT shall benefit a carrier where the doctor “tanks” his case is not a material and necessary reason for discovery.

    Problems with appeals is that one never knows how the appellate term will rule. Now, in the first department this case is bad law for the carriers.

    For every Unitrin there is a Ralph Medical. Currently, I have a case that the carrier is threatening to appeal. Its a twist on Unitrin. I hope they appeal, because it gives me a chance to attack Unitrin and I have nothing to lose. If they appeal, they are idiots. Let the one case go ….

    Overall, Ralph Medical is not a bad decision. Its says stop this nonsense. But you should have let this one go Jason. Now, there is no room to fight another day.

    More and more plaintiff firms are going to arbitration. The defense bar and the Courts have slowed down the process so much its impossible to move cases. The carriers send adjusters to arbitrations. Where does that leave defense counsel?

    Look at the big picture Jason. Just food for thought my friend.

  3. Wang Chung says:

    This is ah Wang Chung.

    With friend lwike Captwain Americwa who need enemwee.

    And Wang Chung not write songs. Wang Chung write that waw.

    You say I write song because you don’t belweve that man from China can be lawywer.

  4. JT says:


    It is a bad decision for many reasons, but since it is still an active case, I need to keep my mouth shut for now. My angst is that I have to spend a Saturday putting together a leave application, instead of other tasks that have to be done.

    As to arbitration, it is currently a gold mine for the plaintiffs. I understand that carriers are sending representatives to arbitration, of which I will also reserve comment except to say that empirically, there is an unsaid rule that attorneys help attorneys. That has been the rule since I started practicing, and I sense it is still true. Of course, if the attorney is a PI guy masquerading as a no-fault attorney, then a claims representative might be the better choice.

    I do see the big picture very well. If you westlaw me, you will see that I have appealed cases in many different areas of law. I get it, always did.

  5. kurt lundgren says:


    Meant no offense. I just think you are wrong on this wrong .. very wrong. You’re one of the smartest defense attorneys out there. You are a real lawyer. On this one …. leave it alone.

  6. Stefan Belinfanti says:

    JT –

    Perhaps if the minimum attny fee was not $60 I would agree with you about EBTs being applied to no-fault also. But since the cost of a transcript (not to mention the cost of doing the EBT) is often more than attny fees for many types of bills, until the DFS implements a deposition fee for plaintiffs, then this case gets my support.

  7. Captain America says:

    Wang what is wrong with you. If you “write that waw” the Captain is good with you. All kinds of people are capable of being lawyers no matter their race, creed, color or sexual orientation. This is or least was America.

    Wang Chung was a cool 80s Alternative rock band. They did the sound track for a great movie — “To Live and Die in LA.” Gave William Petersen of CSI fame his start. Great car chase. The director William Friedkin also directed The French Connection with Gene Hackman and Roy Schieder. Great car chase. Hackman is great but the Captain loved Schieder — he made the mechanical shark in Jaws real. He also drove the souped up Helicopter in Blue Thunder wherein he shot up the LA Nazis.

    But Friedkin directed Schieder in the cult hit Sorcerer. Two men must transport Nitro across the jungle to a mine. Its an emergency trip. They meet all kinds of sickos on the way. But their biggest enemy is the rutted dirt road that shakes the nitro to the verge of explosion the whole movie. Only one makes it. And when he gets to the camp the whole scene is just incredible.

    Just a little culture from back when there was an America Mr. Chung.

  8. Wang Chung says:

    This is ahh Wang Chung. Wang Chung come across thwis in swome crazy mwan’s papwers. Tend to support App Term 1st

    Furthermore, while the scope of discovery is as a general matter broad in the Supreme Court, the same is not true in the lower courts. This is due to the fact that in the lower courts the monetary sums that are at issue are by the very nature of the lower courts relatively, and often times in actuality, quite small. See C3101:11. Disclosure in Various Courts, Practice Commentaries to CPLR Section 3101:

    Early in the life of the CPLR, the Court of Appeals recognized that the use of any disclosure device should be reasonable in light of the effort and expense necessary to obtain the information. See Allen, 21 N.Y.2d at 406-407, 288 NYS2d at 452. As the stakes in particular case decrease, so does the efficiency of the use of the disclosure devices, which consume time, money, and effort. The protective order provision of CPLR 3103(a) is applicable in all of the courts and the tendency to use it should increase as the stakes of the litigation decrease. Otherwise, a wealthy litigant could take undue advantage of a poorer one, sometimes to the extent of putting the latter to the effort and expense greater than the total worth of the case. See Commentary C3103:6 below. In the four uniform acts [including the New York City Civil Court Act, see infra], the protective order provision is given particularly broad scope, being available to curtail even the use of the bill of particulars. (Emphasis added).

    The intent of the legislature to limit disclosure in the lower courts is demonstrated by the provisions of the Uniform Justice Court Act, Article 11, Section 1101, Disclosure, as explained in C3103:6. Protective Orders in the Lower Courts, Practice Commentaries to CPLR Section 3103:

    Article 31 and all of its disclosure devices are available in the lower courts. Section 1101 in each of the lower court acts so provides See Commentary C3101:11, above. Subdivision (C) of that section in each of the acts – the New York City Civil, Uniform District, Uniform City, and Uniform Justice court acts – makes the CPLR 3103 protective order equally available in those courts, and in fact states that it “shall not be limited to the disclosure devices provided in Article 31 of the CPLR.” This was designed to make the protective order device available in the lower courts even against the bill of particulars, which is technically not a disclosure device and therefore not subject to CPLR 3103 in the supreme court or county courts. See Commentaries on Section 1101 in the cited acts, McKinney’s Book 29Q, Parts 2 and 3.

    The lower the monetary jurisdiction of the court, the smaller the sum involved in the case. The smaller that sum, the less justification there is for the use of disclosure devices. See Commentary C3101:11, above. In a very small action, the expense attending to the use of disclosure can exceed the sum involved on the merits. The use of disclosure in such circumstances would constitute abuse and just as clearly invoke protective provisions of CPLR 3103(a). To allow disclosure when its expense would render a victory on the merits a Pyrrhic one would violate both the spirit of Article 31 and the letter of CPLR 3103(a).


    Whenever the sum involved on the merits of the case is small and the relative expense of disclosure high, the court should not hesitate to exercise its protective powers under CPLR 3103(a). At best, the disclosure should be limited to the least expensive and time-consuming devices. The trial judge, advised that disclosure was dispensed with not for lack of need but because of its disproportionate expense, can recognize the problem by allowing wider latitude upon the questioning of the party or witness at the trial itself. (Emphasis added; paragraph discussing taxable disbursements omitted due to inapplicability as recoupable expenses in no-fault are statutorily defined and do not include disclosure expenses)

    Uniform Justice Court Act Section 1101(c):

    Protective order. The protective order provided for in CPLR Section 3103 shall be available in this court with regard to all of the foregoing, and shall not be limited to the disclosure devices provided in Article 31 of the CPLR.

    As stated by the Court of Appeals:

    The words, ‘material and necessary’, are, in our view, to be interpreted liberally go require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101(subd. (a)) should be constructed, as the leading text on practice puts it, to permit discovery of testimony ‘which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable’ (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.07, p. 31-13)

    Allen v. Crowell-Collier Publishing Company, 21 NY2d 403, 406-407 (1968). See, also, Cynthia B. v. New Rochelle Hospital Medical Center, 60 NY2d 452, 461) (“need for discovery must be weighed against burden and expense imposed upon defendant by disclosure”)

    The party seeking production of documents has the burden of establishing that the production of the demanded material will lead to the discovery of evidence relevant to the case. Crazytown Furniture, Inc. v. Brooklyn Union Gas Co., 150 A.D.2d 420 (2nd Dep’t 1989).