Gumbs v Flushing Town Ctr. III, L.P., 2014 NY Slip Op 01267 (2d Dept. 2014)

“Discovery determinations rest with the sound discretion of the motion court (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). This Court is nonetheless vested with a corresponding power to substitute its own discretion for that of the motion court (id.). Notwithstanding our own discretion, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” (Don Buchwald & Assoc. v Marber-Rich, 305 AD2d 338, 338 [1st Dept 2003][internal quotation marks omitted]). Unlike the dissent, we find no abuse of the court’s discretion given the paucity of support for the motion in the first instance. Specifically, defendants’ argument regarding the relevance of Gumbs’s medical history as set forth in his deposition was improperly made for the first time in their reply papers (see e.g. [*2]Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [1st Dept 2012]). The purpose of reply papers “is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion” (id. [internal quotation marks omitted]). This impropriety deprived plaintiffs of an opportunity to respond to the argument. Accordingly, the denial of defendants’ motion was reasonable and supported by law.

We, otherwise, find no occasion to substitute our own discretion for that of the motion court. Gumbs’s waiver of his physician-patient privilege is limited in scope to “those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]). Gumbs did not place his entire medical condition in controversy by suing to recover damages for orthopedic injuries (see e.g. Schiavone v Keyspan Energy Delivery NYC, 89 AD3d 916, 916-917 [2d Dept 2011]).


The dissent found noteworthy.  This was the rule I always learned as Justice Gische stated it:

“Defendants’ motion squarely put before the court plaintiff’s verified complaint and supplemental bills of particulars which expressly specified that plaintiff’s demand for monetary damages included loss of future earnings and loss of enjoyment of life based upon the permanency of his injuries. These sworn statements were sufficient to show that plaintiff had put his overall physical condition at issue in this action. The absence of the deposition transcript detailing plaintiff’s general physical condition until defendants’ reply papers did not warrant denial of defendants’ motion.”

This was a 3-2 and I am sure someone will grant Defendant leave to appeal to the Court of Appeals.  The case looks like a 7 figure dispute.

Late motion to strike note of issue can be considered

Sansone v Sansone, 2014 NY Slip Op 00982 (2d Dept. 2014)

“The plaintiff failed to demonstrate that she served her motion, inter alia, to vacate the note of issue and certificate of readiness within 20 days after their service upon her (see CPLR 2211; 22 NYCRR 202.21[e]). Nevertheless, the Supreme Court properly granted the plaintiff’s motion, upon the plaintiff’s showing of good cause, since there were material misstatements of fact in the certificate of readiness, and a number of unforeseen circumstances stalled the completion of discovery (see 22 NYCRR 202.21[e]; Torres v Saint Vincents Catholic Med. Ctrs., 71 AD3d 873Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254; Club Italia v Italian Fashion Trading, 268 AD2d 219, 219-220). ”

What is illustrative is the citation to Torres, which states the following: “A motion to vacate the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where “a material fact in the certificate of readiness is incorrect” or upon “good cause shown“”

So it appears that a material missatement in the certificate of readiness will allow a tardy motion to vacate note of issue to be made and considered.

EUO no show substantiated

Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 50134(U)(App. Term 2d Dept. 2014)

“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”


Notice of Trial stricken

Tahir Med., P.C. v Central Mut. Fire Ins. Co., 2014 NY Slip Op 50092(U)(App. Term 1st Dept. 2014)

“Defendant’s timely motion to strike the action from the trial calendar should have been granted, since plaintiff’s August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests”

Plaintiff’s post-notice of trial cross motion for a protective order should have been denied. Plaintiff was barred from seeking such relief, where it previously filed a certificate of readiness, and failed to show that an unusual or unanticipated condition subsequently developed (see 22 NYCRR 208.17[d]; Capri Beachwear, Inc. v AAA Stretch, Inc., 49 AD2d 831 [1975]).  Inasmuch as the case has been restored to a pre-notice of trial posture as a result of our disposition, plaintiff may, if so advised, renew its motion for a protective order in Civil Court.”

There is a trend here that the discovery obligations of the  CPLR will be constu

A motion for summary judgment is denied pending disclosure

Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 2013 NY Slip Op 52246(U)(App. Term 2d Dept. 2013)

“In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]). Under the circumstances of this case, summary judgment was premature (see CPLR 3212 [f]), and the branch of plaintiff’s cross motion seeking to compel discovery should have been granted.”

It appears that A. Central moved for summary judgment relatively quickly following receipt of an answer.  Furthermore, Metropolitan Diagnostic cross-moved for disclosure based relief in that motion sequence.  That is why “Under the circumstances”, Plaintiff was able to stave off summary judgment.  This should be contrasted to the line of cases where Plaintiff does not seek disclosure for 8-10 months following joinder of issue and Defendant then moves for summary judgment.  In that scenario, Plaintiff loses its motion and summary judgment is granted.

EUO preclusion and EBT’s based upon preserved box #18 defense

Megacure Acupuncture, P.C. v Lancer Ins. Co., 2013 NY Slip Op 51994(U)(App. Term 2d Dept. 2013)

(1) “We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

It looks like the EUO provider delay letters were not timely delayed; therefore, the EUO no-show defense was precluded.

(2) “Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U])”

A follow-up request must be sent within 10-days after the failure to appear for the initial examination

(3) “With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.”

Checked off Box #18 allows the granting of the EBT

EBT order as an alternative to a denied medical necessity motion

Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 2013 NY Slip Op 51737(U)(App. Term 2d Dept. 2013)

My case.  Let’ s see how many more appeals I have to perfect on this issue.  My fear is this going to be like the acupuncture fee schedule, which always spawns an appeal despite the law being settled.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its treating chiropractor for a deposition. Plaintiff cross-moved for summary judgment. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.”

“CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U][App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant is defending this action on the ground, among others, that the services rendered lacked medical necessity, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.”

Mallela based disclosure granted

Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co., 2013 NY Slip Op 51745(U)(App Term 2d Dept. 2013)

“Defendant established that the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. Moreover, defendant’s outstanding discovery demands seek to ascertain whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and in light of the fact that defendant set forth specific and detailed reasons for seeking the discovery at issue, the Civil Court properly granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery

Tax records denied in Mallela based disclosure matter

W.W. Med., P.C. v Allstate Ins. Co., 2013 NY Slip Op 51743(U)(App. Term 2d Dept. 2013)

“It 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 AD3d 435 [2005]; see also Benfeld v Fleming Props., LLC, 44 AD3d 599 [2007]). Here, defendant failed to demonstrate that plaintiff’s tax returns were properly discoverable and, as a result, at this juncture, defendant’s request for such documentation should have been denied. Defendant, however, established its [*2]entitlement to depose Dr. Wilkins Williams (see CPLR 3101 [a]; see also All Boro Psychological Servs., P.C., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U]). In light of the foregoing, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff’s cross motion seeking a protective order.”

The insurance carrier is not entitled to tax records absent special circumstances, which on this record and at this point were non-existent.

Conditional discovery order vacated upon showing of law office failure

Elite Med. NY, P.C. v American Tr. Ins. Co., 2013 NY Slip Op 51738(U)(App. Term 2d Dept.2013)

“Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.”

Blown discovery stipulation/order granting conditional preclusion relief defeated upon showing of law office failure.