September 29, 2008
First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))
https://www.beynensonlaw.com/case-law/first-aid-occupational-therapy-pllc-v-state-farm-mut-auto-ins-co-2008-ny-slipop-51963u/
- Decided
- September 29, 2008
- Citation
- 2008 NY Slip Op 51963(U) · 21 Misc 3d 128(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
- Legal questions
- Mallela defense: preclusion and discovery (see the maps)
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.
Reported in New York Official Reports at First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))
| First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. |
| 2008 NY Slip Op 51963(U) [21 Misc 3d 128(A)] |
| Decided on September 29, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1353 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2007. The order granted defendant’s motion to vacate the notice of trial and to direct plaintiff to respond to defendant’s discovery demands and appear for an examination before trial with respect to defendant’s defense based upon plaintiff’s alleged fraudulent incorporation.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant served a notice of examination before trial and a notice for discovery and inspection. Thereafter, defendant moved to vacate the notice of trial and certificate of readiness filed by plaintiff, asserting that, contrary to plaintiff’s representation, discovery was not complete. The court granted defendant’s motion and directed plaintiff to provide complete and meaningful responses to defendant’s discovery demands with respect to defendant’s defense of fraudulent incorporation and to appear for an examination before trial (EBT) with respect to said defense. This appeal by plaintiff ensued.
Vacatur of the notice of trial and certificate of readiness was properly granted since the certificate of readiness contained the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50358[U] [App Term, 2d & 11th Jud Dists 2007]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). Moreover, contrary to plaintiff’s contention, defendant is not precluded from raising a defense based upon plaintiff’s allegedly fraudulent incorporation [*2](see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).
Defendant’s remaining contentions lack merit. Accordingly, the order is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 29, 2008
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.
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)
Upheld vacatur of the notice of trial and an order compelling discovery and an EBT on fraudulent incorporation, holding the insurer was not precluded from raising that defense.
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.
- Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. (2007 NY Slip Op 50358(U))A notice of trial should be vacated when the certificate of readiness erroneously states that discovery was completed or waived.
- Multiquest, P.L.L.C. v Allstate Ins. Co. (2007 NY Slip Op 27366) FollowedA professional service limited liability company is ineligible for no-fault reimbursement if it violates licensing requirements.
Cited by
A label shows how the later decision treated this one.
- Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U)) FollowedThe insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete.
- Allstate Social Work & Psychological Servs., P.L.L.C. v Autoone Ins. Co. (2011 NY Slip Op 52295(U)) FollowedA provider that fails to timely challenge discovery demands must respond except as to privileged or palpably improper matters.
- Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51645(U)) FollowedThe provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production.
- Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 52162(U))A provider that fails to timely challenge discovery demands must respond, except as to privileged or palpably improper matters.
- Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))The provider's notice of trial was vacated because its certificate of readiness incorrectly stated that discovery was complete.
- Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses.
- SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))The insurer's timely motion to vacate the notice of trial was granted because the readiness certificate incorrectly stated discovery was waived.
Similar decisions
- First Aid Occupational Therapy, PLLC v State Farm Fire & Cas. Co. (2008 NY Slip Op 51099(U))The provider failed to establish a business-records foundation for the documents supporting its summary judgment motion.
- 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.
- VE Med. Care, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50571(U))The insurer established grounds to amend its answer to assert fraudulent incorporation and obtain the provider's tax documents.
- 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.
- First Aid Occupational Therapy, PLLC v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50863(U))Storing document copies under a retention policy does not establish business-record status without proof of how and when they were generated.