        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

748
CA 13-02097
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


LIMARIE DOMINICCI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THOMAS FORD, ET AL., DEFENDANTS.
----------------------------------------
STATE FARM AUTOMOBILE INSURANCE COMPANY,
APPELLANT.


HISCOCK & BARCLAY, LLP, ROCHESTER (TARA J. SCIORTINO OF COUNSEL), FOR
APPELLANT.

PARISI & BELLAVIA, LLP, ROCHESTER (ALBERT PARISI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered June 12, 2013. The order denied the motion
of State Farm Automobile Insurance Company to quash a subpoena.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: This personal injury action arises out of a motor
vehicle accident in which a vehicle operated by plaintiff was
rear-ended by a vehicle operated by Thomas Ford (defendant). During
the course of the litigation, defendant’s insurance company, nonparty
State Farm Automobile Insurance Company (State Farm), the appellant
herein, retained a physician to conduct an independent medical
examination of plaintiff on behalf of defendant. Thereafter,
plaintiff’s counsel served a judicial subpoena duces tecum on State
Farm. The subpoena sought, inter alia, production of 1099 forms or
other wage statements reflecting payments made by State Farm to the
examining physician for the period from 2009 through 2011, as well as
bills and invoices related to the litigation received from the
examining physician, his staff or business, or from the independent
examination processing company.

     State Farm moved to quash the subpoena pursuant to CPLR 2304 on
the ground that it was plaintiff’s intent to use the subpoenaed
materials to impeach the examining physician’s general credibility.
Plaintiff opposed the motion on the ground that she intended to use
the subpoenaed documents to cross-examine the examining physician at
trial with respect to his bias or interest. Supreme Court denied the
motion, and we affirm.
                                 -2-                           748
                                                         CA 13-02097

     “It is . . . well settled that a motion to quash a subpoena duces
tecum should be granted only where the materials sought are utterly
irrelevant to any proper inquiry” (Velez v Hunts Point Multi-Serv.
Ctr., Inc., 29 AD3d 104, 112; see New Hampshire Ins. Co. v Varda,
Inc., 261 AD2d 135, 135). “Moreover, the burden of establishing that
the requested documents and records are utterly irrelevant is on the
person being subpoenaed” (Gertz v Richards, 233 AD2d 366, 366). It is
“proper to allow cross-examination of a physician regarding the fact
that the defendant’s insurance company retained him to examine the
plaintiff in order to show bias or interest on the part of the
witness” (Salm v Moses, 13 NY3d 816, 818, citing Di Tommaso v Syracuse
Univ., 172 App Div 34, 37, affd 218 NY 640). Questions concerning the
bias, motive or interest of a witness are relevant and should be
“freely permitted and answered” (see Burke v County of Erie, 110 AD3d
1461, 1462 [internal quotation marks omitted]; see Roggow v Walker,
303 AD2d 1003, 1004) and, thus, plaintiff is entitled to discovery
materials that will assist her in preparing such questions. In light
of the foregoing, we conclude that the court did not abuse its
discretion in denying the motion.




Entered:   July 3, 2014                        Frances E. Cafarell
                                               Clerk of the Court
