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EBT denied
Discovery

EBT denied

By Jason Tenenbaum 8 min read

Key Takeaway

Appellate Term First Department rules CPLR doesn't apply to no-fault EBTs, reviving Zlatnick precedent that limits insurer discovery rights in medical provider cases.

This article is part of our ongoing discovery coverage, with 102 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.

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 were somehow lacking. Any other result would … subvert the purpose of no-fault laws …, the prompt payment of first-party benefits … 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.


Legal Update (February 2026): Since this 2014 post, New York’s no-fault fee schedules have undergone multiple revisions, and regulatory amendments may have affected EBT procedures and discovery practices in no-fault cases. Additionally, appellate decisions subsequent to Ralph Med. Diagnostics may have further refined the scope of discovery rights for insurers and healthcare providers. Practitioners should verify current procedural requirements and fee schedule provisions when handling similar discovery disputes.

Legal Context

Why This Matters for Your Case

New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.

Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.

About This Topic

Discovery Practice in New York Courts

Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.

102 published articles in Discovery

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Common Questions

Frequently Asked Questions

What is discovery in New York civil litigation?

Discovery is the pre-trial phase where parties exchange relevant information and evidence. Under CPLR Article 31, discovery methods include depositions (oral questioning under oath), interrogatories (written questions), document demands, requests for admission, and physical or mental examinations. Discovery in New York is governed by the principle of full disclosure of all relevant, non-privileged information — but courts can issue protective orders to limit discovery that is overly broad or burdensome.

What happens if a party fails to comply with discovery requests?

Under CPLR 3126, a court can impose penalties for failure to comply with discovery, including preclusion of evidence, striking of pleadings, or even dismissal of the action or entry of a default judgment. Before seeking sanctions, the requesting party typically must demonstrate a good-faith effort to resolve the dispute and may need to file a motion to compel disclosure under CPLR 3124.

What are interrogatories and how are they used in New York litigation?

Interrogatories are written questions served on the opposing party that must be answered under oath within a specified timeframe. Under CPLR 3130, interrogatories in New York are limited — a party may serve a maximum of 25 interrogatories, including subparts, without court permission. Interrogatories are useful for obtaining basic factual information such as witness names, insurance details, and factual contentions. Objections must be specific and timely or they may be waived.

What is a bill of particulars in New York personal injury cases?

A bill of particulars under CPLR 3043 and 3044 provides the defendant with the specific details of the plaintiff's claims — including the injuries sustained, the theory of liability, and the damages sought. In personal injury cases, it must specify each injury, the body parts affected, and the nature of the damages claimed. An amended or supplemental bill may be served to include new injuries or updated information discovered during the course of litigation.

What is an Examination Before Trial (EBT)?

An EBT, commonly called a deposition, is a pre-trial discovery tool under CPLR 3107 where a witness answers questions under oath. In personal injury and no-fault cases, EBTs are used to lock in testimony, assess witness credibility, and uncover facts relevant to the case. Both plaintiffs and defendants can be deposed, along with medical experts, claims adjusters, and other witnesses. EBT testimony can be used at trial for impeachment or as evidence if the witness is unavailable.

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Attorney Jason Tenenbaum

About the Author

Jason Tenenbaum, Esq.

Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.

Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.

24+ years in practice 1,000+ appeals written 100K+ no-fault cases $100M+ recovered

Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.

New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.

If you need legal help with a discovery matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.

Jason Tenenbaum, Personal Injury Attorney serving Long Island, Nassau County and Suffolk County

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

Education
Syracuse University College of Law
Experience
24+ Years
Articles
2,353+ Published
Licensed In
7 States + Federal

Discussion

Comments (8)

Archived from the original blog discussion.

CA
Captain America
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.
KL
kurt lundgren
Jason, 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.
WC
Wang Chung
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.
J
JT Author
Kurt, 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.
KL
kurt lundgren
Jason, 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.
SB
Stefan Belinfanti
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.
CA
Captain America
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.
WC
Wang Chung
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).

Legal Resources

Understanding New York Discovery Law

New York has a unique legal landscape that affects how discovery cases are litigated and resolved. The state's court system includes the Civil Court (for claims up to $25,000), the Supreme Court (the primary trial court for unlimited jurisdiction), the Appellate Term (which hears appeals from lower courts), the Appellate Division (divided into four Departments, with the Second Department covering Long Island, Brooklyn, Queens, Staten Island, and several upstate counties), and the Court of Appeals (the state's highest court). Each court has its own procedural requirements, local rules, and case-assignment practices that can significantly impact the outcome of your case.

For discovery matters on Long Island, cases are typically filed in Nassau County Supreme Court (at the courthouse in Mineola) or Suffolk County Supreme Court (in Riverhead). No-fault arbitrations are heard through the American Arbitration Association, which assigns arbitrators throughout the metropolitan area. Workers' compensation claims go to the Workers' Compensation Board, with hearings at district offices across the state. Understanding which forum is appropriate for your case — and the specific procedural rules that apply — is essential for a successful outcome.

The procedural landscape in New York also includes important timing requirements that can affect your case. Most civil actions are subject to statutes of limitations ranging from one year (for intentional torts and claims against municipalities) to six years (for contract actions). Personal injury cases generally have a three-year deadline under CPLR 214(5), while medical malpractice claims must be filed within two and a half years under CPLR 214-a. No-fault insurance claims have their own regulatory deadlines, including 30-day filing requirements for applications and 45-day deadlines for provider claims. Understanding and complying with these deadlines is critical — missing a filing deadline can permanently bar your claim, regardless of how strong your case may be on the merits.

Attorney Jason Tenenbaum regularly practices in all of these venues. His office at 326 Walt Whitman Road, Suite C, Huntington Station, NY 11746, is centrally located on Long Island, providing convenient access to courts and offices throughout Nassau County, Suffolk County, and New York City. Whether you need representation in a no-fault arbitration, a personal injury trial, an employment discrimination hearing, or an appeal to the Appellate Division, the Law Office of Jason Tenenbaum, P.C. brings $24+ years of real courtroom experience to your case. If you have questions about the legal issues discussed in this article, call (516) 750-0595 for a free, no-obligation consultation.

New York's substantive law also presents distinct challenges. In motor vehicle cases, the no-fault system under Insurance Law Article 51 provides first-party benefits regardless of fault, but limits the right to sue for non-economic damages unless the plaintiff establishes a "serious injury" under one of nine statutory categories. This threshold — codified at Insurance Law Section 5102(d) — requires medical evidence showing more than a minor or subjective injury, and courts have developed detailed standards for each category. Fractures must be documented through imaging studies. Claims of permanent consequential limitation or significant limitation of use require quantified range-of-motion testing with comparison to norms. The 90/180-day category demands proof that the plaintiff was unable to perform substantially all of their usual daily activities for at least 90 of the 180 days following the accident.

In employment discrimination cases, the legal standards vary depending on whether the claim arises under state or local law. The New York State Human Rights Law employs a burden-shifting framework: the plaintiff must first establish a prima facie case by showing membership in a protected class, qualification for the position, an adverse employment action, and circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its decision. If the employer meets this burden, the plaintiff must demonstrate that the stated reason is pretextual. The New York City Human Rights Law, by contrast, applies a broader standard, asking whether the plaintiff was treated less well than other employees because of a protected characteristic.

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