W & Z Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2012 NY Slip Op 52400(U)(2d Dept. 2012)
Insurance carrier sought an EBT of the medical provider based upon the “independent contractor” defense. Until three months ago, this defense escaped preservation. Not so anymore. The Court was therefore constrained to reverse the Civil Court:
“In an affirmation in support of defendant’s motion to compel, defendant’s attorney argued that the treating acupuncturists were not plaintiff’s employees; rather, they were independent [*2]contractors and, therefore, plaintiff was ineligible to recover the assigned no-fault benefits at issue. However, defendant’s denial of claim forms did not deny plaintiff’s claims on the ground that the treatment at issue had been rendered by independent contractors. Therefore, defendant is precluded from asserting that ground for denial of coverage as a defense in this litigation (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2012 NY Slip Op 06902 [2d Dept, Oct 17, 2012]). Consequently, the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT in support of this defense should have been denied, as this discovery demand is palpably improper.”
