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August 10, 2011

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51551(U))

https://www.beynensonlaw.com/case-law/q-b-jewish-med-rehabilitation-p-c-v-allstate-ins-co-2011-ny-slip-op51551u/

Court
Appellate Term, Second Department
Decided
August 10, 2011
Citation
2011 NY Slip Op 51551(U) · 32 Misc 3d 139(A)
Posture
Other motion
Outcome
Split result
Issues
Discovery and procedure Fraudulent incorporation (Mallela)
Legal questions
Mallela defense: preclusion and discovery (see the maps)
Cite as
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139(A), 2011 NY Slip Op 51551(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

The insurer justified financial and tax discovery on provider eligibility, but the provider's remaining discovery responses were sufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, limiting compelled disclosure to bank records, income and payroll tax filings, W-2 or 1099 forms, and a subsequent owner deposition. Detailed licensing concerns under Mallela supported discovery under CPLR 3101 (a); bank records were material and necessary, and special circumstances justified tax disclosure. Additional responses to other demands were unwarranted. The court upheld striking the action from the trial calendar because the readiness certificate misstated completed discovery. Considering the insurer's slightly late motion was within the Civil Court's discretion under CPLR 2004 and 22 NYCRR 208.17 (c).

Reported in New York Official Reports at Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51551(U))

[*1]
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co.
2011 NY Slip Op 51551(U) [32 Misc 3d 139(A)]
Decided on August 10, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-107 Q C.
Q-B Jewish Med. Rehabilitation, P.C. as Assignee of IYANNA LYALMIYEVA, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 24, 2009. The order, insofar as appealed from, granted defendant’s motion to strike the action from the trial calendar and compel plaintiff to respond to defendant’s discovery demands.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands is granted to the extent of compelling plaintiff to provide the documents sought in items 19, 20, and 21 of defendant’s notice to produce and in interrogatory 11 (c) within 60 days of the date of the order entered hereon, and by further compelling plaintiff to produce its owner, John McGee, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, 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 as granted defendant’s motion to strike the action from the trial calendar and compel plaintiff to respond to defendant’s discovery demands and to produce its owner for an examination before trial (EBT).

It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant’s motion to strike the action from the trial calendar was untimely, under all of the circumstances presented, including the de minimis nature of the delay in moving to strike the [*2]action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

The record indicates that plaintiff objected to producing items 19 through 21 of defendant’s notice to produce, which sought plaintiff’s bank statements and canceled checks (item 19), plaintiff’s federal and state tax returns including attachments and schedules (item 20), and plaintiff’s payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff’s objection to the foregoing demands lacked merit. Defendant has shown that plaintiff’s bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns and payroll tax filings (see CPLR 3101 [a]; Ava Acupuncture, P.C. v Autoone Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff’s responses to the remainder of defendant’s interrogatories and defendant’s notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.

In light of the foregoing and the misstatements of material facts contained within plaintiff’s certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: August 10, 2011

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 (rules on the question, but another ground decided the case)

Compelled production of bank records, tax returns, payroll filings and W-2/1099 forms and an EBT of the owner because the insurer gave detailed reasons to suspect licensing ineligibility, a defense that is not precluded.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 72
  • Trial courtsTrial 56
2005, Court of Appeals: 1 decision (1 Defense may be pursued)2021, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Division: 2 decisions (1 Defense may be pursued, 1 Defense barred)2017, Appellate Division: 1 decision (1 Defense may be pursued)2016, Appellate Division: 1 decision (1 Defense may be pursued)2011, Appellate Division: 1 decision (1 Defense may be pursued)2008, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Term: 1 decision (1 Defense may be pursued)2018, Appellate Term: 2 decisions (2 Defense may be pursued)2017, Appellate Term: 2 decisions (2 Defense may be pursued)2014, Appellate Term: 2 decisions (2 Defense may be pursued)2013, Appellate Term: 5 decisions (5 Defense may be pursued)2012, Appellate Term: 8 decisions (8 Defense may be pursued)2011, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2010, Appellate Term: 9 decisions (7 Defense may be pursued, 2 Defense barred)2009, Appellate Term: 7 decisions (7 Defense may be pursued)2008, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2007, Appellate Term: 7 decisions (7 Defense may be pursued)2006, Appellate Term: 6 decisions (6 Defense may be pursued)2025, Appellate Term: 7 decisions (7 Defense may be pursued)2023, Trial courts: 2 decisions (2 Defense may be pursued)2021, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2019, Trial courts: 1 decision (1 Defense may be pursued)2017, Trial courts: 4 decisions (2 Defense may be pursued, 2 Defense barred)2015, Trial courts: 3 decisions (3 Defense may be pursued)2013, Trial courts: 2 decisions (1 Defense may be pursued, 1 Defense barred)2012, Trial courts: 6 decisions (1 Defense may be pursued, 5 Defense barred)2011, Trial courts: 1 decision (1 Defense barred)2010, Trial courts: 3 decisions (3 Defense barred)2009, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2008, Trial courts: 6 decisions (5 Defense may be pursued, 1 Defense barred)2007, Trial courts: 2 decisions (2 Defense may be pursued)2006, Trial courts: 5 decisions (5 Defense may be pursued)2005, Trial courts: 9 decisions (5 Defense may be pursued, 4 Defense barred)2025, Trial courts: 2 decisions (2 Defense may be pursued)2026, Trial courts: 2 decisions (2 Defense may be pursued)This decision
20052010201520202025
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. One decision in other departments that cites or is cited by this one is on the full map.

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).
  • One Beacon Ins. Group, LLC v Midland Med. Care, P.C. (2008 NY Slip Op 06813)The insurers raised a triable issue of fraudulent incorporation despite evidence of physician ownership and oversight of the provider.
  • AVA Acupuncture, P.C. v AutoOne Ins. Co. (2010 NY Slip Op 51350(U)) FollowedThe insurer justified corporate financial discovery on fraudulent incorporation, but failed to justify the owner's personal tax and banking records.
  • Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51529(U)) FollowedThe insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns.
  • Statewide Med. Acupuncture Servs., PC v Travelers Ins. Co. (2005 NY Slip Op 51773(U))The insurer's incorporation-fraud allegations lacked a reliable foundation for compelling depositions of the providers' owner and acupuncturists.

Cited by

  • Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2012 NY Slip Op 50152(U))The insurer's specific reasons to question the provider's licensing compliance supported discovery of its financial and tax records.
  • 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.

Similar decisions

  • Allstate Social Work & Psychological Servs., P.L.L.C. v Autoone Ins. Co. (2011 NY Slip Op 52295(U))A provider that fails to timely challenge discovery demands must respond except as to privileged or palpably improper matters.
  • Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 52185(U))Discovery supporting a precluded medical-necessity defense is palpably improper even without a timely objection.
  • Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co. (2011 NY Slip Op 52362(U))The insurer's motion to compel supplemental discovery was premature because the provider had no opportunity to respond to the new demands.
  • All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 23043)The insurer established a basis for Mallela discovery, defeating the provider's summary judgment motion.
  • 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.
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