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.
Related Articles
- New York No-Fault Insurance Law
- EBT procedural requirements in no-fault cases
- Assignor EBT appearance requirements and sanctions
- CPLR 3212(f) relief limitations in discovery disputes
- NY EBT venue rules and undue hardship exceptions
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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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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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.
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.
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