MSJ + EBT = disaster for plaintiff

Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 2013 NY Slip Op 50475(U)(App. Term 2d Dept. 2013)

“The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an examination before trial and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.”

“ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an  examination before trial is granted and the examination shall be held within 60 days of  the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.”

…

“Plaintiff submitted an affirmation by its treating physician which was sufficient to raise triable issues of fact as to the medical necessity of the services rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126, 2011 NY Slip Op 50438 ), and as to whether the fees charged were in accordance with the Workers’ Compensation fee schedule. Consequently, the branch of defendant’s motion seeking summary judgment was properly denied. However, the branch of defendant’s motion seeking an order compelling plaintiff to appear for an EBT should have been granted (see CPLR 3101 ). 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 defense.”

And there you have it.  An aborted summary judgment motion spurns an EBT of a medical provider.

Related Articles

• Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
• A plain disaster: EBT procedural requirements in no-fault cases
• The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
• NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2013 post was published, New York’s Workers’ Compensation fee schedule referenced for no-fault reimbursement rates has undergone multiple amendments, and CPLR discovery procedures may have been modified through court rule changes or legislative updates. Practitioners should verify current fee schedule provisions and examination before trial requirements under the most recent versions of applicable statutes and regulations.