June 25, 2012

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

https://www.beynensonlaw.com/case-law/pomona-med-diagnostic-p-c-v-adirondack-ins-co-2012-ny-slip-op51165u/

Court: Appellate Term, First Department
Decided: June 25, 2012
Citation: 2012 NY Slip Op 51165(U) · 36 Misc 3d 127(A)
Posture: Other motion
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Discovery and procedure Priority, other coverage Fraudulent incorporation (Mallela)
Legal questions: Workers' comp or other insurer primary · Mallela defense: preclusion and discovery (see the maps)

Cite as

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127(A), 2012 NY Slip Op 51165(U) (App Term, 1st Dept 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer cannot deny a no-fault claim on the ground that another carrier is primarily liable. Under 11 NYCRR 65-3.12 (b) and M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., discovery concerning that defense was immaterial and the demands were palpably improper. The insurer also supplied no case-specific allegations supporting its fraudulent-incorporation defense, so discovery on that issue would be a fishing expedition based on suspicion. The Appellate Term, First Department, reversed the order, insofar as appealed from, and denied the insurer's motion to strike the provider's notice of trial and compel discovery.

Reported in New York Official Reports at Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))

[*1]

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co.

2012 NY Slip Op 51165(U) [36 Misc 3d 127(A)]

Decided on June 25, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Shulman, Torres, JJ
570718/11.

Pomona Medical Diagnostic P.C. a/a/o Kevin Dalberiste, Plaintiff-Appellant, – –
against
Adirondack Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated March 30, 2011, as granted defendant’s motion to strike the notice of trial and compel discovery.

Per Curiam.

Order (Jose A. Padilla, J.), dated March 30, 2011, insofar as appealed from, reversed, with $10 costs, and motion denied.

The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Workers' comp or other insurer primary

Open the full map

Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: Another insurer's possible priority is no defense: the first insurer notified pays, then arbitrates with the other insurer

Held discovery on the insurer's defense that another carrier was primarily liable palpably improper, because under 65-3.12 (b) the insurer cannot rely on that defense to deny the no-fault claim.

Referred to WC BoardWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 9 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Mallela defense: preclusion and discovery

Open the full map

May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?

This decision: Insurer may not pursue or investigate the Mallela defense here (rules on the question, but another ground decided the case)

Denied the insurer's motion to compel discovery on fraudulent incorporation because it set forth no case-specific allegations supporting the defense and could not use discovery as a fishing expedition on mere suspicions.

Defense may be pursuedDefense barredThis decisionCites it or cited by itCited or followed

Of the 24 decisions on this question in the First Department courts and the Court of Appeals, 7 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2011 NY Slip Op 01333) FollowedAn insurer first notified of a no-fault claim must pay benefits despite a priority dispute that belongs in interinsurer arbitration.
One Beacon Ins. Group, LLC v Midland Med. Care, P.C. (2008 NY Slip Op 06813) Contrasted (cf., but see)The insurers raised a triable issue of fraudulent incorporation despite evidence of physician ownership and oversight of the provider.

Cited by

A label shows how the later decision treated this one.

Nexray Med. Imaging PC v Allstate Ins. Co. (2013 NY Slip Op 50910(U)) FollowedThe provider obtained a protective order limiting the insurer's bank subpoena to signature cards because broader discovery was unwarranted.
BS Kings County Med., P.C. v State Farm Mut. Auto Ins. Co. (2020 NY Slip Op 20200) FollowedThe insurer's case-specific allegations warranted Mallela discovery, but the provider's conduct did not justify dismissal.
Yumi Acupuncture, P.C. v 21st Century Ins. Co. (2026 NY Slip Op 50433(U)) FollowedAn insurer first receiving a no-fault claim cannot toll payment by requesting a declaration addressing only other insurance.
HKP Physical Therapy, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 29381)An insurer may seek post-EUO verification of a pharmacy's eligibility for no-fault reimbursement upon a showing of good cause.

Similar decisions

Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))The provider failed to establish mailing of its verification response, leaving its no-fault claim premature.
Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U))The provider's action was premature because it had not answered timely mailed verification requests before commencing suit.
Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52059(U))The insurer's peer reviews established lack of medical necessity, and the claimed rebuttal letter was absent from the record.
Pomona Med. Diagnostics, PC v MVAIC (2013 NY Slip Op 51250(U))The provider's trial judgment was reversed because conflicting accident dates and unresolved police-report hearsay prevented an informed determination.
Pomona Med. Diagnostics, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52131(U))Conflicting medical expert opinions raised a triable issue concerning the necessity of the provider's diagnostic tests.