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Ostia Medical12/26/2003
This opinion is uncorrected and will not be published in the printed Official Reports.
The following named papers numbered 1 to 4 were submitted on this Notice of Motion on July 18, November 5, November 20 and November 24, 2003:
Papers numbered
Notice of Motion and Affidavits Annexed 1-2
Order to Show Cause and Affidavits Annexed --
Answering Affidavits 3
Reply Affidavits 4
Factual Background
The forty-eight (48) cases listed in the above caption have been joined for the purposes of the instant motion only. The plaintiffs (hereinafter "plaintiff" or "medical provider") are all medical providers, being represented by the same law firm, and the defendant in all forty-eight (48) cases is Government Employees Insurance Company (hereinafter "GEICO" or "insurance carrier") . In all of the actions, the plaintiff is seeking recovery of no-fault benefits from GEICO, due to medical services provided to the plaintiff's assignors, for injuries allegedly resulting from various motor vehicle accidents.
The plaintiff moves, pursuant to CPLR 3103(a), for a protective order vacating GEICO's notice to compel the examination before trial (hereinafter "EBT") of the medical provider. The plaintiff claims that as a matter of law, the defendant is not entitled to an EBT of the plaintiff. In the alternative, the plaintiff requests that if the Court should deny the plaintiff's motion for a protective order, then the Court order supervised discovery, pursuant to CPLR 3104. GEICO opposes the plaintiff's motion and cross-moves for an order granting costs and sanctions.
The legislature's intent in enacting the no-fault law was to ensure that every automobile accident victim be compensated for substantially all of his or her basic economic loss (i.e., first party benefits ) promptly, without regard to fault and to significantly reduce the number of automobile personal injury cases litigated in the courts (see, Johnson v. Hartford Ins. Co., 100 Misc.2d 367, 418 N.Y.S.2d 1009 [Sup Ct Monroe County 1979]; Licari v. Elliot, 52 N.Y.2d 230 ; Zlatnick v. GEICO, N.Y.L.J. 12/8/03, p. 21, col.1, 2003 WL 22849608, 2003 NY Slip Op. 23870 [Civil Court, Queens County], citing Medical Society of State of New York v. Serio, 100 N.Y.2d 853 (2003). Contrary to the legislature's intent, however, in a large number of cases, prompt compensation is not occurring. Rather, medical providers, who have been assigned the injured victim's right to first party benefits are resorting to litigation in New York courtrooms for recovery of first party benefits. In recent years, the Nassau County District Court, as well as many courts of limited jurisdiction in New York State, have become swamped with no-fault litigation for the recovery of first party benefits. Due to the recent influx of no-fault litigation, this Court has had to tackle numerous first impression, no-fault substantive and procedural issues. In fact, this Court has set up no-fault discovery conference calendars, to help ease the burden on the Court and to try to promote the intent of the legislature (i.e., prompt payment and/or resolution of no-fault claims).
The Court finds the legal issues presented in the parties' respective motion papers to be as follows:
(1)Is an insurance carrier entitled to an EBT of a medical provider under the CPLR and the UDCA?
(2)Is an insurance carrier entitled to an EBT of a medical provider, as well as answers to interrogatories in a No-Fault Action?
(3)Is an insurance carrier entitled to an EBT of a medical provider, under the No-Fault Regulations, if it failed to request an oral Exami
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