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DISCOVERY RULES AND PROTOCOLS ARE NOT TO BE IGNORED BY NO-FAULT PROVIDERS
By: Annette Hader, Esq.

FOR THE DEFENSE

DISCOVERY RULES AND PROTOCOLS ARE NOT TO BE IGNORED
BY NO-FAULT PROVIDERS


By: Annette Hader, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


As in any no-fault litigation matter, discovery is generally exchanged between the parties before the matter proceeds to trial. It is well settled that pursuant to CPLR 3120 that “after commencement of an action, any party may serve on any other party a notice…to produce discovery…which are in possession, custody or control of the party or person served.” This exchange of discovery permits the no-fault defendant to review records such as: medical bills plaintiff is claiming are overdue in its claim; medical records concerning the claimant; the assignment of benefits form to establish plaintiff has standing to bring the claim; and proof of mailing of the medical bills.

However, plaintiff is entitled to object to such discovery demands. Objections to such discovery demands are governed by CPLR 3122 and must be made “within twenty days of service of a notice (for discovery).” CPLR 3122 dictates that if the party does object, said party “shall state with reasonable particularity the reasons for each objection.” CPLR 3122 also explicitly grants permission to a party to move for an order compelling discovery.

When the plaintiff fails to respond to defendant’s demands, defendant may ask the Court to intervene. If the defendant can demonstrate to the Court that plaintiff’s failure to disclose said information was willful, the defendant can move pursuant to CPLR 3126 to strike plaintiff’s pleadings or dismiss plaintiff’s action or preclude plaintiff from offering said evidence at trial. Defendant can also alternatively move pursuant to CPLR 3124 to compel the disclosure.

The Supreme Court, Appellate Term, New York, 2nd and 11th Judicial Districts (hereinafter referred to as “Appellate Term”) recently reviewed said discovery principles in Delta Diagnostic Radiology, P.C. a/a/o Lidaine Philogene v. Chubb Group of Insurance. - N.Y.S.2d -, 2007 WL 2409463 (N.Y.Sup.App.Term), 2007 N.Y. Slip Op. 27345.

In Delta, Hon. Sweeny of the Civil Court of the City of New York, County of Richmond, denied defendant’s motion to strike the complaint, or in the alternative, to compel disclosure, and granted plaintiff’s cross-motion for summary judgment. The Appellate Term reversed the lower Court. First, the Court reversed the lower court’s summary judgment ruling, holding that defendant’s opposition to plaintiff’s summary judgment motion was sufficient to demonstrate a triable issue of fact with respect to the defense of medical necessity. With respect to the discovery dispute, the Appellate Term ruled that, “with respect to defendant’s motion to strike plaintiff’s complaint, or in the alternative, to compel plaintiff to respond to defendant’s discovery demands, plaintiff offered token opposition. ‘The failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper.’” The Appellate Term did not strike plaintiff’s complaint, but did compel “plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant\'s discovery demands, and, within 30 days after service of such responses, to produce a witness for an examination before trial.” Id.

This case is a successful ruling for defendants. Generally speaking, plaintiffs fail to object to defendants’ discovery demands within the time prescribed by CPLR 3122. Hopefully, with this ruling, no-fault plaintiffs will realize that discovery must be taken seriously, and that no-fault defendants are indeed entitled to an adequate response to their discovery demands and are indeed entitled to depositions of plaintiffs.


Editor’s note: Annette Hader, Esq., is an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

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