LOTS OF NEW DECISIONS FROM APP. TERM 2nd

Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 28341 (App. Term, 2d)

An insurer's submission of a denial of claim form which denies a provider's claim based upon a peer review report is sufficient to raise the defense of lack of medical necessity. The Appellate Division, Second Department, has noted that such a denial of claim form need not set forth with particularity the factual basis and medical rationale upon which the defense was based, because the provider may, if it so desires, request a copy of the written peer review report from [*2]the insurer pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (b) (4) (New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]). The Appellate Division further stated that "[h]ad it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form . . ., it would have so provided" (New York Univ. Hosp. Rusk Inst., 39 AD3d at 833; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d at 780; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d at 779).

The Insurance Regulations provide no sanction for an insurer's failure to provide a peer review report upon the written request for one by a provider (see e.g. A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51415[U] [App Term, 2d & 11th Jud Dists 2006]). While plaintiff urges the court to impose the sanction of preclusion here, we decline to do so because "[h]ad it been the intent of the Department of Insurance" to impose such a sanction, "it would have so provided" (New York Univ. Hosp. Rusk Inst., 39 AD3d at 833; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d at 780; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d at 779). Indeed, the application of a preclusion sanction would necessarily entail the wholesale creation of a regulatory scheme, as the Insurance Regulations do not provide a time frame within which the request for the peer review report must be made by the provider or complied with by the insurer. Absent these time frames, there is no way to know when a sanction for noncompliance is warranted, and we decline to read such a scheme into the Insurance Regulations.

We note that even in the absence of a sanction imposed by the Insurance Regulations, a provider is not without any recourse where an insurer fails to provide a requested peer review report. The prescribed NF-10 denial of claim form provides that a complaint may be made by the provider to the Insurance Department whose "regulations provide agency oversight of carriers" (State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]). In any event, if the matter proceeds to the litigation stage, the provider may seek disclosure of the peer review report.

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2008 NY Slip Op 28342 (App. Term, 2d)

Notwithstanding the foregoing, insurers may not employ red-tape dilatory practices and schedule EUOs in an unreasonable manner. The Insurance Regulations require that verification proceed "as expeditiously as possible" (Insurance Department Regulations [11 NYCRR] § 65-3.2 [c]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d at 285; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

A review of the record indicates that defendant demonstrated that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification (cf. Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Defendant established that the EUO scheduling letters were timely mailed, on May 25, 2005 and July 5, 2005 (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), by setting forth the standard office practices or procedures used to ensure that such items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The date selected for the initial EUO, June 27, 2005, was not unreasonable, and defendant established that the assignor failed to appear at the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 722 [2006]). Plaintiff's remaining contentions are either improperly raised for the first time on appeal or lack merit.

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 2008 NY Slip Op 51852(U) (App. Term, 2d)

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff's motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the action (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51855(U) (App. Term, 2d)

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party's showing of prejudice to a substantial right should not be disturbed on appeal (King's Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d & 11th Jud Dists 2007]). In the instant matter, the claims arose out of three separate motor vehicle accidents and three insurance policies were at issue. The particular facts relating to each claim at issue are likely to raise few, if any, common issues of law or fact (see Radiology Resource Network, P.C. v Fireman's Fund Ins. Co., 12 AD3d 185 [2004]; Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d & 11th Jud Dists 2007]; S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists 2005]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists 2005]). A single trial involving different sets of facts regarding three underlying accidents and injuries would pose the danger of being unwieldy [*2]and confusing (see King's Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [2007], supra). Accordingly, the order granting defendant's motion to sever the causes of action is affirmed.

Supple Mind Acupuncture, P.C. v State Farm Ins. Co., 2008 NY Slip Op 51856(U) (App. Term, 2d)

"[A]n expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion' " (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984], quoting People v Sugden, 35 NY2d 453, 460 [1974]). The proponent of such testimony may satisfy its "burden of showing acceptance in the profession . . . through the testimony of a qualified expert" (People v Goldstein, 6 NY3d 119, 124-125 [2005]). In the [*2]instant case, defendant did not elicit any testimony from its expert which could support a conclusion that the material he relied upon in forming his opinion was "of a kind accepted in the profession as reliable in forming a professional opinion" (Goldstein, 6 NY3d at 125; see also Sugden, 35 NY2d at 460). Consequently, the testimony of the expert witness and his report were inadmissible (Hambsch, 63 NY2d at 726).

Although defendant contends that it was nevertheless entitled to judgment dismissing the complaint because plaintiff did not object to the testimony by defendant's expert, "[n]o judgment, even in a small claims action, can rest entirely on hearsay evidence" (Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]; see also Arnold Herstand & Co. v Gallery: Gertrude Stein, Inc., 211 AD2d 77 [1995]; Levins v Bucholtz, 2 AD2d 351 [1956]; Prince, Richardson on Evidence § 8-108 [Farrell 11th ed] [citations omitted]).

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 2008 NY Slip Op 51858(U) (App. Term, 2d)

In opposition to plaintiff's motion for summary judgment, defendant annexed an affidavit by the chiropractor who executed the peer review report which set forth a factual basis and medical rationale for his opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, plaintiff's motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 2008 NY Slip Op 51859(U) (App. Term, 2d)

The affidavits submitted by plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted the claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; cf. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Upon a review of the record, we find that the affidavits submitted by defendant's investigators were sufficient to demonstrate that defendant possessed a "founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997], supra; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Island Surgical Supply Co., Inc. v MVAIC, 2008 NY Slip Op 51860(U) (App. Term, 2d)

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint, arguing, inter alia, that the action was premature since plaintiff and its assignor failed to exhaust all remedies against the owner of the vehicle that plaintiff's assignor was driving before seeking relief from MVAIC. MVAIC also asserted that the action was premature since plaintiff's assignor failed to provide sufficient information so that MVAIC could determine whether she was a qualified person. Plaintiff cross-moved for summary judgment. The court granted plaintiff's cross motion for summary judgment, rejecting MVAIC's argument that plaintiff's assignor was not a "qualified person." This appeal by defendant ensued.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which plaintiff's assignor was driving at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). If plaintiff unsuccessfully exhausts its remedies against the owner of the vehicle, plaintiff may assert a claim against MVAIC. [*2]However, until plaintiff exhausts its remedies, its claim against MVAIC is premature (id.). Consequently, MVAIC's motion for summary judgment should have been granted and plaintiff's cross motion denied.

Midisland Med., PLLC v Allstate Ins. Co., 2008 NY Slip Op 51861(U) (App. Term, 2d)

As to the claim seeking $1,999.12, defendant did not rebut plaintiff's prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant's opposing papers, does not set forth a factual basis and medical rationale sufficient to establish the defense of lack of medical necessity, inasmuch as the reviewer asserted that she had insufficient documentation and information (see A.B. Med. Servs. PLLC. v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]). Since defendant did not demonstrate that it sought to obtain such information by means of a verification request, defendant did not establish a triable issue of fact as to this claim (see id.; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]). Consequently, plaintiff is entitled to summary judgment on its $1,999.12 claim.

With respect to the claim seeking $746.01, defendant rebutted plaintiff's prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant's opposing papers, set forth a sufficient factual basis and medical rationale so as to raise a triable issue of fact regarding medical necessity (see A.B. Med. Servs. PLLC. v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [2007], supra). Contrary to plaintiff's contention, the fact that the reviewer stated in the report that the "documentation did not reflect that this claimant had failed office-based physical therapy," does not require the conclusion that the doctor considered the information insufficient to permit a medical necessity determination. Consequently, plaintiff is not entitled to summary judgment on its $746.01 claim.

With respect to the claims seeking the sums of $532.20 and $1,768.18, the affidavit of defendant's senior operations staff analyst is insufficient to show that defendant timely mailed its denials for said claims since the affiant does not address the mailing of these denials in his affidavit. Consequently, defendant is precluded from interposing its proffered defense of lack of medical necessity with respect to these two claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff is entitled to summary judgment on said claims.

Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51862(U) (App. Term, 2d)

However, defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant's cross motion failed to establish that plaintiff's action was premature due to plaintiff's failure to respond to timely verification requests (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, defendant's cross motion for summary judgment should have been denied.

Ying E. Acupuncture, P.C. v Global Liberty Ins., 2008 NY Slip Op 51863(U) (App. Term, 2d)

With respect to defendant's denial of plaintiff's claims seeking to recover the sums of $90, $150 and $30, the record indicates that plaintiff, in effect, conceded that the denial of claim form pertaining to said claims was timely. These claims were denied on the ground of concurrent care. However, defendant failed to establish an issue of fact with respect to said defense since it did not submit an affidavit from a person with the relevant training and/or educational background to competently assess whether the claims sought payment for treatment which constituted concurrent care. These claims were also denied based upon an affirmed independent medical examination (IME) report, a copy of which was attached to defendant's opposing papers. Since the IME report set forth a sufficient factual basis and medical rationale for the conclusion that the services rendered after the IME was conducted, for which plaintiff seeks to recover the sums of $90 and $150, were not medically necessary, plaintiff's motion for summary judgment should have been denied as to these two claims (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]). However, since plaintiff's claim seeking the sum of $30 was for services rendered before the IME was conducted, the IME report, which indicated that, as of the date of the IME, there was no medical necessity for further treatment, is insufficient to demonstrate the existence of an issue of fact as to the medical necessity of such services. Consequently, plaintiff was entitled to summary judgment upon the $30 claim.

Elm Med., P.C. v MVAIC, 2008 NY Slip Op 51865(U) (App. Term, 2d)

In this action by a provider against defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) to recover assigned first-party no-fault benefits, the sole issue raised in the court below was whether the 45-day time limit within which claims are required to be submitted to an insurer (see Insurance Department Regulations [11 NYCRR] § 65-1.1) was applicable to claims submitted to MVAIC. The court concluded that the 45-day time limit was applicable and, as a result, judgment was ultimately entered dismissing plaintiff's complaint on the ground that the claims were untimely. This appeal by plaintiff ensued.

In Nir v MVAIC (17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]), this court held that a provider seeking to recover assigned first-party no-fault benefits is required to submit such a claim to MVAIC within 45 days of the date on which the services were rendered and that a failure to do so could be excused if the provider set forth a "reasonable justification" for the delay (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). In light of the foregoing, the judgment is affirmed.

Lur Med. Supply, Inc. v GEICO Ins. Co., 2008 NY Slip Op 51867(U) (App. Term, 2d)

Plaintiff's contention, that the peer review report was inadmissible since it contained a stamped facsimile of the doctor's signature, was raised for the first time on appeal and, thus, plaintiff waived any objection thereto (Dowling v Mosey, 32 AD3d 1190 [2006]; cf. Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists 2006]).

Odessa Medical Supply, Inc. v Kemper Auto & Home Ins. Co., 2008 NY Slip Op 51868(U) (App. Term, 2d)

In this action, plaintiff, a provider, seeks to recover assigned first-party no-fault benefits from the named defendant, Kemper Auto & Home Insurance Company (Kemper). In June 2005, plaintiff submitted its no-fault claim to Unitrin Advantage Insurance Company (Unitrin). During the claims process, a law firm representing Kemper scheduled examinations under oath (EUOs) of the assignor's physician. "Unitrin Kemper Auto and Home" sent plaintiff a letter stating that there would be a delay in the consideration of its claim pending the completion of the scheduled EUOs. After the physician failed to appear for the EUOs, Unitrin issued a denial of claim form in September 2005. Thereafter, plaintiff commenced the instant action against Kemper. Unitrin served and filed an answer in which it stated that it was "i/s/h/a [incorrectly sued herein as] Kemper Auto & Home Insurance Company." After receiving the answer, plaintiff did not move to amend the caption or join Unitrin as a party; rather, it moved for summary judgment, with Kemper still listed in the caption as the lone defendant. Plaintiff's attorney stated in the moving papers that his affirmation was "in support of the within motion seeking summary judgment against the defendant, Kemper Auto & Home Insurance Company." Plaintiff, however, served this motion upon Unitrin's attorneys. A cross motion for summary [*2]judgment dismissing the complaint was served and filed by "Unitrin Advantage Insurance Company i/s/h/a Kemper Auto & Home Insurance Company," asserting, inter alia, that plaintiff had sued the wrong insurer. By order entered September 4, 2007, the court below denied plaintiff's motion and granted Unitrin's cross motion. The instant appeal by plaintiff ensued.

Plaintiff's motion for summary judgment against Kemper must be denied since its motion papers were served upon Unitrin, the action was based upon a claim submitted to Unitrin, and there has been no showing that Kemper and Unitrin are effectively a single entity. Moreover, given the fact that Unitrin is not currently a formal party to this action, and its cross motion seeks to dismiss the complaint which is asserted against a different entity, its cross motion is similarly denied.

Infinity Health Prods., Ltd. v Zurich Ins. Co., 2008 NY Slip Op 51869(U) (App. Term, 2d)

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The affidavit of plaintiff's billing manager states that plaintiff's assignor received medical supplies for injuries he sustained in an accident on October 12, 2004, which date corresponds to the facts alleged in the complaint. The annexed claim forms and denials, however, refer to an accident occurring on September 29, 2004. Consequently, plaintiff's cross motion for summary judgment should have been denied. Defendant, however, established itsprima facie entitlement to summary judgment dismissing the complaint based upon the fact [*2]that it did not receive claims from plaintiff regarding an accident on October 12, 2004 involving plaintiff's assignor. Inasmuch as plaintiff failed to rebut defendant's showing, defendant's motion for summary judgment dismissing the complaint is granted.

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51870(U) (App. Term, 2d)

With respect to defendant's cross motion, defendant contends that its NF-10 denial of claim forms were timely since its verification requests tolled the statutory 30-day time period in which it had to pay or deny the claims. We note, however, that defendant failed to establish that it timely mailed its verification requests and denial of claim forms inasmuch as the affidavit of its litigation examiner did not sufficiently set forth defendant's standard office practices and procedures used to ensure that said documents were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Uptodate Med. Servs., P.C. v Lubermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant's cross motion was properly denied.

Vista Surgical Supplies, Inc. v American Tr. Ins. Co., 2008 NY Slip Op 51871(U) (App. Term, 2d)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant's answer or precluding defendant from testifying in the event defendant fails to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff's motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Connely v Allstate Ins. Co., 2008 NY Slip Op 51874(U) (App. Term, 2d)

CPLR 3101 (a) provides for full disclosure of all matter "material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Parties to an action are entitled to reasonable discovery "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, plaintiff's motion should have been granted to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).