Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion: Papers Notice of Motion and Affidavits Annexed 1 Cross Motion and Affidavits 2 P’s motions to compel and preclude 3+4 Replying Affidavits Exhibits Other DECISION AND ORDER Upon the foregoing cited papers and oral argument held on May 3, 2024, the Decision and Order on Plaintiff’s motions to compel, preclude, dismiss affirmative defenses, and Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment and Plaintiff’s motion to compel discovery as follows: defendant’s motion for summary judgment is denied. Defendant conducted an examination under oath (“EUO”) of BURKE PHYSICAL THERAPY, P.C. and its owner, John Nasrin, D.P.T. on 9/14/18. The accident herein occurred on 9/1/18; yet Defendant requested numerous documents in the instant matter based on the providers business practices and not related to any claim or services provided. In fact, Plaintiff within its papers establishes responses and objections to the same verification requests. The Court finds that Defendant has failed to establish a proper foundation for the requested documents in the subject verification requests or a sufficient basis to support its allegations of fraud. In fact, there is a Declaratory Judgment action between the same parties for the same relief (at least as it applies to the Defendant in this action) and based on the same EUO verification requests, where State Farm’s motion for summary judgment based on the same outstanding verification defense was denied on February 25, 2022 by the Honorable Erica L. Prager. See State Farm Mut. Auto. Ins. Co. v. Burke Physical Therapy, P.C., 77 Misc. 3d 130(A), 178 N.Y.S.3d 375 (Sup. Ct., Nassau County, 2022). PLAINTIFF’s motion for summary judgment is granted to the extent that Plaintiff demonstrated timely and proper submission of the bills at issue to Defendant. Plaintiff’s motion to dismiss affirmative defenses is denied. The Court finds that there are material triable issues of fact as to the propriety of Defendant’s EUO (Examination Under Oath) verification requests, see Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc. 3d 139(A) 26 N.Y.S.3d 214 (App. Term, 2d Dept., 2015), and the sufficiency of Defendant’s allegations of fraud, the basis for Defendant’s verification requests. If Defendant meets its burden at trial demonstrating the propriety of its EUO verification requests then the issue becomes whether verification remains outstanding considering Plaintiff’s verification responses and the Supreme Court Decision and Order in Burke, supra. This case shall proceed to trial on the issues cited herein. Furthermore, as pertains to discovery, Plaintiff Motion to compel discovery responses is granted to the extent defendant’s discovery responses shall be served within sixty (6)) days from the date of this order. Defendant shall produce responses to Plaintiff’s Discovery Demands within 60-days of this Decision and Order or be precluded from offering or relying on all items requested, but not provided at the time of trial. This constitutes the Decision and Order of the Court. Dated: June 12, 2024
