| North Bronx Med. Health Care v Auto One Ins. Co. |
| 2016 NY Slip Op 51625(U) [53 Misc 3d 148(A)] |
| Decided on November 1, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 28, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint, or, in the alternative, to compel a deposition of plaintiff's treating doctor.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel a deposition of plaintiff's treating doctor is granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff's treating doctor to appear for a deposition. The Civil Court denied defendant's motion but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.
Upon a review of the record, we find that, as to both claims at issue, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branch of defendant's motion seeking summary judgment was properly denied.
However, as the deposition of plaintiff's treating doctor is material and necessary to defendant's defense of this action (see CPLR 3101 [a]; Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), defendant is entitled to such discovery.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel a deposition of plaintiff's treating doctor is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.