May 11, 2012

Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U))

https://www.beynensonlaw.com/case-law/medical-polis-p-c-v-progressive-ins-co-2012-ny-slip-op-50864u/

Court: Appellate Term, Second Department
Decided: May 11, 2012
Citation: 2012 NY Slip Op 50864(U) · 35 Misc 3d 139(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure Fraudulent incorporation (Mallela)
Legal questions: Mallela defense: preclusion and discovery (see the maps)

Cite as

Medical Polis, P.C. v Progressive Ins. Co., 35 Misc 3d 139(A), 2012 NY Slip Op 50864(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 may obtain Mallela discovery despite omitting the defense from its answer if its moving papers sufficiently allege ineligibility. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling disclosure and then an examination before trial of the provider's owner, and denying the provider's cross motion for a protective order and summary judgment. The insurer sufficiently alleged that the professional service corporation was ineligible for no-fault reimbursement because it failed to comply with applicable licensing requirements. The Civil Court therefore acted within its discretion in ordering discovery. In light of that ruling, denial of the provider's cross motion was proper under CPLR 3212 (f).

Reported in New York Official Reports at Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U))

[*1]

Medical Polis, P.C. v Progressive Ins. Co.

2012 NY Slip Op 50864(U) [35 Misc 3d 139(A)]

Decided on May 11, 2012

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1684 Q C.

Medical Polis, P.C. as Assignee of VERONICA RICHARDSON, Appellant, —
against
Progressive Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 10, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.

Notwithstanding defendant’s failure to assert in its answer a defense pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), it was not precluded from seeking discovery related to that defense, since defendant made sufficient allegations in its moving papers that plaintiff, a professional service corporation, is ineligible to recover no-fault benefits because it fails to comply with applicable state or local licensing requirements (Lexington Acupuncture, P.C. v General Assur. Co., ___ Misc 3d ___, 2012 NY Slip Op 22047 [App Term, 2d, 11th & [*2]13th Jud Dists 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial. In light of the foregoing, the court properly denied plaintiff’s cross motion for a protective order and summary judgment (see CPLR 3212 [f]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012

Legal questions

A question 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.

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 raise or investigate the Mallela defense here

Held the insurer could seek Mallela discovery and the owner's deposition despite not pleading the defense, because its moving papers sufficiently alleged licensing noncompliance, so the provider's summary judgment and protective-order motion were properly denied.

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

Of the 136 decisions on this question in the Second Department courts and the Court of Appeals, 112 (this one included) are in the same category.

Cited in this decision

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

State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
Lexington Acupuncture, P.C. v General Assur. Co. (2012 NY Slip Op 22047) FollowedAn insurer may obtain Mallela discovery on sufficient allegations of fraudulent incorporation despite not pleading that defense.
Medical Polis, P.C. v Progressive Specialty Ins. Co. (2012 NY Slip Op 50342(U)) FollowedAn insurer may obtain discovery on an unpleaded Mallela defense when sufficient allegations of fraudulent incorporation support the request.

Similar decisions

RLC Med., P.C. v Allstate Ins. Co. (2010 NY Slip Op 50642(U))The insurer established a need for discovery of facts in the provider's possession concerning alleged fraudulent incorporation.
All Boro Psychological Services, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50777(U))A provider that misses discovery objection deadlines must respond except as to privileged or palpably improper demands.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 50870(U))An insurer's SIU file is discoverable unless the insurer establishes that it was prepared solely for litigation.
PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))The insurer's unrefuted need for discovery on licensing defeated the provider's summary judgment motion.
Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51745(U))The insurer justified discovery on provider licensing eligibility, and the provider's certificate of readiness incorrectly stated discovery was complete.