Opinion
2011-10-28
Q–B JEWISH MED. REHABILITATION, P.C. as Assignee of Mikhail Abramov, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
Khavinson & Associates, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant. McDonnell & Adels, P.L.L.C., Garden City (James J. Cleary, Jr., of counsel), for respondent.
Khavinson & Associates, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant. McDonnell & Adels, P.L.L.C., Garden City (James J. Cleary, Jr., of counsel), for respondent.
Present: PESCE, P.J., RIOS and STEINHARDT, JJ.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel plaintiff to respond to defendant's discovery demands is granted to the extent of compelling plaintiff to provide the documents sought in items 19, 20, and 21 of defendant's notice to produce and in interrogatory 11(c) within 60 days of the date of this decision and order, and by further compelling plaintiff to produce its owner, John McGee, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted defendant's motion to strike the action from the trial calendar and compel plaintiff to respond to defendant's discovery demands and to produce its owner for an examination before trial (EBT).
It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant's motion to strike the action from the trial calendar was untimely, under the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff's contention, it cannot be said that the Civil Court's determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion ( see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c] ).
Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits ( see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 794 N.Y.S.2d 700, 827 N.E.2d 758 [2005] ), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff's financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits ( see e.g. CPLR 3101[a]; One Beacon Ins. Group, LLC v. Midland Med. Care, P.C., 54 A.D.3d 738, 863 N.Y.S.2d 728 [2008] ).
The record indicates that plaintiff objected to producing items 19 through 21 of defendant's notice to produce, which sought plaintiff's bank statements and canceled checks (item 19), plaintiff's federal and state tax returns including attachments and schedules (item 20), and plaintiff's payroll tax filings (item 21), and to providing the W–2 or 1099 forms sought in interrogatory 11(c). We find that plaintiff's objection to the foregoing demands lacked merit. Defendant has shown that plaintiff's bank records are material and necessary ( see CPLR 3101[a] ), and that special circumstances exist which warrant the disclosure of plaintiff's income tax returns and payroll tax filings ( see CPLR 3101[a]; AVA Acupuncture, P.C. v. Autoone Ins. Co., 28 Misc.3d 134(A), 2010 N.Y. Slip Op. 51350(U), 2010 WL 2990196 [App. Term, 2d, 11th & 13th Jud. Dists. 2010]; Great Wall Acupuncture v. State Farm Mut. Auto Ins. Co., 20 Misc.3d 136(A), 2008 N.Y. Slip Op. 51529(U), 2008 WL 2814818 [App. Term, 2d & 11th Jud. Dists. 2008]; Statewide Med. Servs., P.C. v. Travelers Ins. Co., 13 Misc.3d 134(A), 2006 N.Y. Slip Op. 52014 (U), 2006 WL 3007599 [App. Term, 1st Dept. 2006], revg. 9 Misc.3d 1124 (A), 2005 N.Y. Slip Op. 51773(U), 2005 WL 2866916 [Civ. Ct., Bronx County 2005]; see also Dore v. Allstate Indem. Co., 264 A.D.2d 804, 695 N.Y.S.2d 422 [1999]; cf. Benfeld v. Fleming Props., LLC, 44 A.D.3d 599, 600, 843 N.Y.S.2d 351 [2007]; Altidor v. State–Wide Ins. Co., 22 A.D.3d 435, 801 N.Y.S.2d 545 [2005] ). In addition, defendant is entitled to an EBT of McGee following the production of the documents ( see CPLR 3101[a] ). However, as the record further reflects that plaintiff's responses to the remainder of defendant's interrogatories and defendant's notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.
In light of the foregoing and the misstatements of material facts contained within plaintiff's certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant's motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.