District Court of Nassau County, First District, July 16, 2018

Thomas Torto, New York City, for defendant.

The Russell Friedman Law Group, LLP, Lake Success, for plaintiffs.

By handwritten stipulation signed by counsel and "So Ordered" by this court on January 18, 2018, a prior disclosure related motion was withdrawn and a submission schedule was entered into to allow consideration of "the sole remaining disclosure issue" without the need to re-notice a new motion or amend the motion being withdrawn. As characterized by the so ordered stipulation, said issue is "whether or not defendant is entitled to depose plaintiff Yan Moshe (Moshe) pursuant to defendant's Notice to Take his deposition which notice is objected to by plaintiff."

Thus, before this court is what may be deemed defendant's motion to compel the deposition of Moshe (see generally CPLR 3124; see also CPLR 3103 [a]).

Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earnings for Moshe's appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC of which Moshe is the owner.

There is no dispute that pursuant to the relevant provisions governing EUOs involving a first-party no-fault insurance claim(s) the deponent is entitled to "loss of [*2]earnings" caused by attendance at the EUO (11 NYCRR 65-3.5 [e]).

As alleged in plaintiffs' complaint, on or about November 6, 2015—prior to the November 10, 2015 EUO—counsel for Excel advised counsel for Country-Wide Insurance Company that Moshe claimed a loss of earnings of $12,186.14 (complaint ¶ 24). In support thereof, and as previously requested by Country-Wide's counsel (complaint ¶ 22), Excel's counsel provided a redacted copy of Moshe's 2014 joint federal tax return which showed $320,000 in "Wages, salaries tips, etc." and an additional $2,604,942 in "Rental real estate, royalties, partnerships, S corporations, trusts, etc." (Complaint ¶ 24; defendant's {**60 Misc 3d at 925}exhibit D [tax return].)^[FN*] Despite demand for confirmation that full payment would be made at the conclusion of the deposition (complaint ¶ 24), Country-Wide neither committed to payment nor rejected same (complaint ¶ 26). Instead, following the EUO, on or about March 10, 2016, Country-Wide remitted $1,280 as its calculation of Moshe's loss of earnings (complaint ¶ 36).

The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe's demand ($12,186.14) and Country-Wide's payment ($1,280). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a "second" deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due to him for his loss of earnings incurred by his appearance at the first deposition.

Plaintiffs oppose defendant's current notice to again depose plaintiff Moshe, contending that the first deposition should have included the "loss of earnings" issue. In effect, plaintiffs would have this court find that defendant's failure to address the loss of earnings issue in the context of the first-party no-fault insurance claim constitutes a waiver of defendant's right to now depose him in the context of this action.

The issue appears to be one of first impression.

It is beyond cavil that the purpose of an EUO of a medical provider in the context of a claim for first-party no-fault insurance benefits is to obtain discovery material and necessary to the defense of said claim (North Bronx Med. Health Care v Auto One Ins. Co., 53 Misc 3d 148[A], 2016 NY Slip Op 51625[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], citing inter alia CPLR 3101 [a]). Accordingly, this was the subject of the examination conducted by defendant on November 10, 2015, and defendant carrier will not be faulted for limiting its deposition to the issues for which the deposition was properly sought.

While 11 NYCRR 65-3.5 (e) establishes and safeguards a medical provider's right to be paid for appearing at an EUO upon a claim for first-party no-fault insurance benefits, the governing provisions of this section speak in terms of reimbursement. It has accordingly been held that a deponent may{**60 Misc 3d at 926} not seek a flat, up-front fee before appearing (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th[*3]& 13th Jud Dists 2016], citing 11 NYCRR 65-3.5 [e]). In view of same, the failure of defendant to agree upon the amount of payment in advance of the EUO despite plaintiffs' efforts in this regard is of no consequence.

That a dispute might have been anticipated over the sufficiency of defendant's eventual calculation of deponent's loss of earnings does not serve to broaden the scope of that deposition beyond the then pending no-fault insurance benefits claim. Rather, the parties' inability to agree on the amount to be reimbursed rendered the within plenary action the appropriate vehicle for adjudication of this ongoing dispute.

With the commencement of a plenary action comes the defendant's entitlement to relevant discovery in defense thereof (CPLR 3101 [a]).

Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault insurance benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 11 NYCRR 65-3.5 (e). This is so regardless of which party ultimately prevails in fixing the amount of Moshe's loss of earnings for his appearance at the first deposition.

CPLR 3103 (a) provides that

"[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant's right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.{**60 Misc 3d at 927}

Accordingly, in the discretion of the court plaintiffs are awarded a protective order against the deposition of Yan Moshe. However, defendant may serve interrogatories upon plaintiffs (see CPLR 3130 et seq.).