Pankratov v 2935 OP, LLC, 2018 NY Slip Op 02479 (2d Dept. 2018)
“In support of its motion, the defendant submitted excerpts of the plaintiff’s deposition transcript which demonstrated, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation (see Razza v LP Petroleum Corp., 153 AD3d 740, 741; Amster v Kromer, 150 AD3d 804, 804; Hoovis v Grand City 99 Cents Store, Inc., 146 AD3d 866, 866; Hahn v Go Go Bus Tours, Inc., 144 AD3d 748, 749; Giordano v Giordano, 140 AD3d 699, 700). In opposition, however, the plaintiff raised a triable issue of fact in this regard by submitting a complete copy of his deposition transcript. When the entirety of that transcript is reviewed, it is clear that the plaintiff identified transparent ice as the cause of his fall. Contrary to the defendant’s contention, such testimony correlates to the plaintiff’s averments regarding the cause of his fall which were set forth in his subsequent affidavit.”
I always thought (and now incorrectly) that a party seeking to use EBT testimony in support (or in opposition) needed to include the entire deposition transcript. It was always dicey to pick the pieces of the EBT you want to insert in the motion. The court, however, sees this as being alright.
Matter of 91 St. Crane Collapse Litig, 2018 NY Slip Op 01651 (1st Dept. 2018)
“In any event, the court providently exercised its discretion in denying the relief sought since the moving defendants failed to show that the testimony they seek is unrelated to diagnosis and treatment and is the only avenue of discovering the information sought ”
The Court goes out of its way to prevent defendants to obtain depositions of treating doctors. The public policy of New York of allowing broad discovery does have its limits.
Avalon Radiology, P.C. v Interboro Ins. Co., 2017 NY Slip Op 51722(U)(App, Term 2d Dept. 2017)
“Insofar as is relevant to this appeal, upon denying plaintiff’s motion for summary judgment and the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, the Civil Court implicitly denied the branch of defendant’s cross motion seeking, in [*2]the alternative, to compel plaintiff to appear for an EBT.
As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).”
I think the reason an EBT was pursued on appeal was that the radiologist signed an affidavit of merit. It would have made for a fun 60 minute deposition.
Jones v Seta, 2016 NY Slip Op 06556 (1st Dept. 2016)
“Defendants’ discovery, after the filing of the note of issue, that Jones had been involved in prior accidents involving the same body parts alleged to have been injured in the subject accident, constitutes “unusual or unanticipated circumstances” warranting further discovery (22 NYCRR 202.21[d]; see Bermel v Dagostino, 50 AD3d 303 [1st Dept 2008]). However, defendants have not articulated a need for a supplemental physical examination, as the IME doctor has already examined Jones, documented his or her findings, and can supplement the same upon receipt of the records relating to Jones’ prior injuries and treatment”
By analogy, false statements at an EUO regarding prior injuries would then warrant a subsequent EUO. Assuming the false statements at the second EUO are not remediable, is this a ground for disclaimer?
New York Community Hosp. of Brooklyn v Mercury Cas. Co., 2016 NY Slip Op 50900(U)(App. Term 2d Dept. 2016)
“Defendant’s contention that the branch of defendant’s motion seeking summary judgment is not premature since plaintiff already possessed its own medical records upon which the peer reviewer relied lacks merit. As a result, under the circumstances of this case, defendant is not entitled to summary judgment at this time (see CPLR 3212 [f]; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”
Kanter v Mercury Cas. Co., 2016 NY Slip Op 50908(U)(App. Term 2d Dept. 2016)
“The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity, and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).”
Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)
“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 ).
The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]).”
Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)
South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)
Cason v Smith, 2014 NY Slip Op 06412 (4th Dept. 2014)
This is an interesting discovery case. The first principle is that once the employee leaves the employ, a 3126 sanction is not proper.
The second principle involves getting blood from a stone. Once the to be deposed party folds its tend and concedes the key point, the adverse party cannot get the answer stricken or the complaint dismissed when the to be deposed party skips deposition.
“We agree with defendants, however, that the court abused its discretion in striking the answer insofar as interposed by Werner. Initially, we note that there was no basis for the court to sanction Werner for failing to produce Smith inasmuch as Smith left Werner’s employ prior to commencement of the action, and plaintiff “proffered no evidence that [Werner] exercised control over [Smith] and thus was responsible for [Smith]’s failure to appear for his deposition””
With respect to Werner’s failure to comply with a prior order
to produce a corporate representative for deposition, it is well established that “[a]lthough the nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking an answer is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith” (Green v Kingdom Garage Corp., 34 AD3d 1373, 1374; see Mosey v County of Erie, 117 AD3d 1381, 1384). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). Here, plaintiff met that initial burden, “thereby shifting the burden to defendant[s] to offer a reasonable excuse” (Hill v Oberoi, 13 AD3d 1095, 1096). We agree with Werner, however, that it offered a reasonable excuse for its failure to comply with the prior order. Plaintiff sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training, and supervision, and such discovery was no longer relevant after Werner conceded the facts necessary to establish liability as a matter of law based on respondeat superior”
All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2014 NY Slip Op 50870(U)(App. Term 2d Dept. 2014)
Remember the stipulation where the releasee agreed that the medical provider was properly formed and complied with all applicable licensing laws? At some point, you might have signed one and rued the consequences for the carelesness. Well, today, it is okay.
(1) “With respect to defendant’s cross motion, plaintiff contends that defendant is not entitled to any discovery regarding whether plaintiff 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 ) because defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was [*2]resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable”
But the SIU file? It is discoverable.
(2) “To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 ; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 ). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).”
And of course, Mallela discovery is always allowed
(3) “Contrary to plaintiff’s contention, defendant sufficiently demonstrated that defendant’s discovery demands which concerned a Mallela defense are “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun”
Arnica Acupuncture P.C. v Interboro Ins. Co., 2014 NY Slip Op 50554(U)(App. Term 1st Dept. 2014)
“However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition ”
This case lies on the extreme end of the Ralph Medical spectrum. Plaintiff did not comply with “interrogatories”, offer an operative report or comply with disclosure in any shape, fashion or form. Rather, the court has held that an affidavit of merit will suffice for a deposition. People have joked, on and off, that the CPLR does not apply to no-fault. This case is further proof that there is truth to that maxim.
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.