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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 15, 2010. The order denied plaintiff’s motion to, in effect, vacate an order of the same court (Richard G. Latin, J.) entered May 13, 2010, which had dismissed the complaint upon plaintiff’s default in complying with a prior conditional order of the same court (Diane A. Lebedeff, J.) entered September 30, 2009.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Diane A. Lebedeff, J.), by order entered September 30, 2009, granted the branch of a motion by defendant seeking to compel plaintiff to provide responses to defendant’s outstanding discovery demands. The order required plaintiff to produce, among other things, the personal tax returns of its principal owner within 30 days of the date of the order, and provided that plaintiff’s noncompliance would “result in dismissal of plaintiff’s complaint with prejudice by filing an affidavit of noncompliance and settle [sic] order.” Thereafter, defendant served plaintiff with a proposed order with notice of settlement and an affirmation of noncompliance alleging that [*2]plaintiff had failed to produce the aforementioned tax returns. By order entered May 13, 2010, the Civil Court (Richard G. Latin, J.) dismissed the complaint with prejudice. Plaintiff contested neither the affirmation of noncompliance nor the proposed order.

Plaintiff then moved, pursuant to CPLR 5015 (a) (3), to, in effect, vacate the order dismissing the complaint on the ground that defendant had misrepresented plaintiff’s noncompliance with the order entered September 30, 2009. By order entered September 15, 2010, the Civil Court (Maureen A. Healy, J.) denied the motion.

Plaintiff’s contention on appeal, in effect, that defendant did not timely submit the proposed order with notice of settlement for court approval in accordance with Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a) is unpreserved for appellate review because plaintiff failed to raise the issue in the Civil Court (see Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596, 597 [1992]; cf. Mora v Mora, 39 AD3d 829 [2007]).

Furthermore, plaintiff failed to satisfy its burden of establishing the existence of any misrepresentation on the part of defendant because plaintiff did not demonstrate that it had, in fact, produced the personal tax returns of its principal owner in compliance with the order entered September 30, 2009 (see CPLR 5015 [a] [3]; see generally Welz v Welz, 83 AD3d 696, 697 [2011]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terence C. O’Connor, J.), dated October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant moved for summary judgment dismissing the complaint. The Civil Court found, among other things, that defendant had submitted “sufficient evidence to establish its timely and proper denial,” and that “[t]he sole issue remaining for trial” is whether defendant established its defense of failure to appear at an independent
medical examination (IME). Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion for summary judgment, defendant submitted an affidavit by its no-fault litigation examiner, who stated, among other things, that defendant had requested that “National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff’s [*2]assignor.” Defendant did not submit an affidavit by an employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled. Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which managed all of the administrative requirements of Transcion Medical, P.C., who stated, among other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor. In view of the foregoing discrepancy, the Civil Court properly determined that defendant had failed to establish its defense based upon the failure of plaintiff’s assignor to appear at an IME.

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

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 22, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied defendant’s cross motion for summary judgment dismissing the complaint, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” So much of the appeal as is from the portion of the order granting the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from a judgment of the same court entered October 18, 2010 awarding plaintiff the principal sum of $1,285.56 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of [*2]action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding; as so modified, the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action, denied defendant’s cross motion for summary judgment dismissing the complaint in its entirety, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” After plaintiff filed a notice of appeal, a judgment was entered awarding plaintiff the principal sum of $1,285.56 on its first and second causes of action. The appeal from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from the judgment (see CPLR 5501 [c]).

We find that the Civil Court improperly granted plaintiff summary judgment on the first and second causes of action. While the court accepted defendant’s allegation that the medical equipment at issue in this case was not delivered directly to plaintiff’s assignor, plaintiff submitted an affidavit which squarely contradicts that allegation. Since the key to summary judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), neither party should have been granted summary judgment on the first and second causes of action. Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied.

The Civil Court correctly denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action, as defendant proffered only conclusory allegations that plaintiff had submitted insufficient responses (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). However, there is no basis in the record for the Civil Court’s finding of the existence of a triable issue of fact as to whether defendant’s verification requests were proper. Accordingly, the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered November 18, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and cross motion, and found that the sole issue for trial was the medical necessity of the services provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The [*2]affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010. The order, insofar as appealed from as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to recover no-fault benefits because the insurance policy had been cancelled prior to the accident. By order entered June 7, 2010, insofar as appealed from as limited by the brief, the Civil Court implicitly denied the cross motion.

On a motion by a defendant insurance company for summary judgment based on a claim that the insurance policy had been cancelled, the initial burden is on the insurer to demonstrate a valid cancellation of the insurance policy. Once the insurance company makes a prima facie showing that it had timely and validly cancelled the policy in compliance with Vehicle and [*2]Traffic Law § 313, the burden shifts to the party claiming coverage to establish noncompliance with the statutory requirements as to form and procedure (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244, 1245 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d 434, 435 [1994]). The papers submitted in support of defendant’s cross motion were sufficient to demonstrate, prima facie, that defendant had timely and validly cancelled the insurance policy in question (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; GEICO Indem. v Roth, 56 AD3d at 1245; Montefiore Med. Ctr. v Liberty Mut. Ins. Co., 31 AD3d 724, 725 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d at 435), thereby shifting the burden to plaintiff. In opposition to the motion, plaintiff did not raise a triable issue of fact as to the validity of the cancellation (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928 [2010]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 11, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 14, 2010, deemed from a judgment of the same court entered September 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 14, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,310.94.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The record establishes that, on December 2, 2008, defendant requested that plaintiff’s assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff’s assignor failed to appear for the EUO. However, defendant did not mail a second request until February 12, 2009. As this follow-up request was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), and, as a result, defendant’s denial of plaintiff’s claim was untimely. Consequently, the Civil Court properly denied defendant’s cross motion for summary judgment, which was based upon the defense that plaintiff’s assignor had failed to appear for an EUO. Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In light of the foregoing, we need not reach the parties’ remaining contentions.

Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 27, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit executed by defendant’s claims examiner was sufficient to establish that defendant’s NF-10 forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff argues on appeal, as it did in the [*2]Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

As defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated October 22, 2010. The judgment, entered upon a decision dated April 10, 2010, made after a nonjury trial, dismissed the complaint.

ORDERED that on the court’s own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s owner testified that he had mailed the claim form in question by certified mail, return receipt requested. However, the certified mail receipt and domestic return receipt which he offered as proof of mailing lacked certain material information. Significantly, the certified mail receipt did not contain amounts for postage and fees, and did not have a clerk identification and date, and the return receipt was not signed by a recipient and did not indicate a date of delivery. Defendant’s witness testified that defendant had not received the claim form in question until after the commencement of the action, some three years after the purported mailing. [*2]

In a decision after trial, the Civil Court found that plaintiff had not established a prima facie case as it had not proved a timely mailing of the claim form in question. A judgment dismissing the complaint was subsequently entered. We deem the notice of appeal from the decision to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court’s opportunity to observe and evaluate the testimony and demeanor of witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of the witnesses and the proof adduced at trial, that plaintiff failed to satisfy its burden of proving that the claim form in question had been timely and properly mailed to defendant. Accordingly, as we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.

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

District Court of Suffolk County, Third District

HUC 2715-11

C. Stephen Hackeling, J.

The defendant’s application for an order dismissing the above captioned action as premature (upon the grounds that plaintiff did not respond to defendant’s verification and follow-up verification requests), is denied. The plaintiff’s cross-motion for summary judgment is granted. The defendant’s affidavits have not adequately demonstrated that defendant timely sent verification requests and follow-up verification requests to the plaintiff. The Court notes that the inadmissable affidavit of Eduardo Morales Carr (improperly notarized) who is positioned in Syracuse, states that he “generated and issued” such requests on certain dates. However, further affidavits indicate that such requests are electronically sent to the centralized administrative team in Harrisburg, Pennsylvania. An insufficient explanation is offered how the letters generated and properly addressed, what procedures are in place to safeguard that all generated requests are actually mailed and to the proper addresses. Further, the affidavit of James R. Snyder, Jr. attempts to describe what occurs in the mailroom, and fails to address postage issues. In sum, the affidavit of Eduardo Morales Carr does not establish by personal knowledge, his mailing of timely requests on dates certain, nor do the affidavits of the defendant, taken as a whole, contain [*2]a sufficiently detailed description of the standard office mailing procedures which give rise to the presumption of mailing. The submitted proof fails to meet even the relaxed standard of proof of mailing established by the Second Department Appellate Division. See, St. Vincents Hospital of Richmond v. Geico, 50 AD3d 1123 (N.Y.AD2d Dept. 2008).

Mallela Discovery As Part Of A Verification Of Claim

Even if defendant’s affidavits could be corrected or evidence introduced at trial to demonstrate that its verification letters were timely mailed; the defendant’s verification requests, seeking inter alia, copies of “sale of shares or transfer of ownership (and) lease agreements” are impermissible and improper requests, and cannot support the finding of a denial “toll” which would permit an award of summary judgment to defendant. Inasmuch as the defense of “fraudulent incorporation” is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial. The defendant may request relevant written documents pertaining to same as part of post joinder written discovery, or may commence a declaratory judgment action seeking to declare the medical provider ineligible to recover benefits. See, Lexington Acupuncture, P.C. v. General Assurance Co., 2012 WL661685 (NY 2nd Dept. App.Term 11th & 13th Dists. 2012), citing to Midwood Acupuncture P.C. v. State Farm Ins. Co., 14 Misc 3d 131(A) (2d Dept. App. Term 11th & 13th Dists. 2007). Requesting this type of information by way of claim verification is abusive of the no-fault verification process. See, Concourse Chiropractic, PLLC v. State Farm Mut. Ins. Co., 2012 NY Slip Op 50676 (U) 35 Misc 3d 1213 (A) (Nassau Co.Dist. Ct, 2012);involving document discovery as part of an “EUO” demand. Tarnoff Chiropractic, PC v. Geico Ins. Co., 35 Misc 3d 1213(A) (Nassau Co. Dist. Ct. 2012); Dynamic Med. Imaging, PC v. State Farm Mut. Auto Ins. Co., 29 Misc 3d 278 (Nassau Co. Dist. Ct. 2010). It is also contrary to the stated policy of the no-fault legislation which is “to insure prompt payment of medical claims for medical treatment provided to people injured in automobile accidents, regardless of fault”. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 566 (NY 2008).

The affidavit of Eduardo Morales Carr, the claims specialist who decided to seek the additional verification in question, provides no good faith basis for seeking corporate status documents. Additionally, the affidavit of Linda Manning does not establish that the defendant had “good cause” to seek fraudulent incorporation documentation at the time the verification requests were generated. Permitting an insurer to obtain written documents such as tax returns, incorporation agreements or leases regarding a potential fraudulent incorporation “Malella” defense as part of the verification process defeats the stated policy and purpose of the no-fault law and carries with it the potential for abuse. See, State Farm Mutual Ins. Co. v. Malella, 4 NY3d 320 (NY 2003) which establishes the parameters of challenging a no-fault claim premised [*3]upon violations of NY Bus. Corp. Law Secs. 1507 and 1508 and NY Educ. Law Sec 6507 (4)(c) and NYCRR 65-3.16 (a)(12). The defendant should not be able to defeat no-fault claims by making onerous and improper non claim related document demands by way of verification.

The Court concurs with its sister Nassau County District Court determinations that “verification” demands as defined by 11NYCRR Sec. 65-3.5(c) are limited to “verifying the claim”. Concourse Chiropractic v. State Farm Ins. Co. cite supra., Judge Hirsch in the Concourse and Dynamic Med. Imaging decisions determined that couching Malella defense discovery in the form of an examination under oath is insufficient to invoke the “verification toll” which would require dismissal of the insurer complaint as premature. Extending this reasoning, Mallela discovery is also inappropriate, even in the absence of an EUO demand, or even if it only involves document production.

Plaintiff’s cross-motion for summary judgment is granted for the amount demanded in the complaint. It is undisputed that defendant received plaintiff’s claims (see affirmation of Frank Marotta, Esq.; exhibits affixed to defendant’s motion papers, affidavit of Eduardo Morales Carr) and has not issued a denial. The verification requests herein did not toll defendant’s 30 day time to deny or pay the claims, as the plaintiff timely responded to the defendant’s request objecting to the Malella discovery request and advising that it was not in possession of said documentation. Such a response meets the requirements under the Insurance Regulations. See 11 N.Y.C.R.R. Sec. 65.15, so as to run the 30 day claim pay/deny time period.

Submit judgment on twenty (20) days notice.

_______________________

J.D.C.

Dated: _________________

District Court of Suffolk County, Second District

BAC 4407-11

Plaintiff Attorney: Baker,Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

Defendant Attorney: Short & Billy, P.C.

David A. Morris, J.

Upon the following papers numbered 1 to8read on the motion by defendant to strike the notice of trial and to compel discovery;and the cross-motion by plaintiff for a protective orderNotice of Motion and supporting papers1, 2Notice of Cross Motion and supporting papers4, 5Answering Affidavits and supporting papers7Replying Affidavits and supporting papersFiled papers; OtherExhibits- 3; 6; 8(and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that this motion by the defendant to strike the notice of trial (22 NYCRR §212.17(c))

and to compel discovery (CPLR §3124) is granted. The plaintiff’s cross-motion for a protective order (CPLR §3103) is denied. The defendant has been served with a notice of trial although court records do not reflect the filing of a notice of trial with the clerk of the court. In the event that a notice of trial has in fact been filed with the court it will be deemed stricken as the motion is timely (22 NYCRR §212.17(c)) and the matter is not ready for trial as pre-trial disclosure has not been completed. In this regard the defendant’s motion papers include copies of various demands for disclosure, together with affidavits of service, to which the plaintiff has not responded. The plaintiff has not timely challenged the propriety of the demands for disclosure (see CPLR §3120 and §3122). In the absence of a timely objection the plaintiff is obligated to produce the information requested except as to matters which are palpably improper or privileged [*2](Radiology Today, P.C. v. GEICO General Ins. Co., 32 Misc 3d 4). It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault medical benefits and such defense is non-waivable and may be asserted at any time (State Farm Mutual Auto Ins. Co. v. Mallela, 4 NY3d 313; Midwood Acupuncture, P.C. v. State Farm Mutual Auto Ins. Co., 14 Misc 3d 131(A)). The failure to state such a defense with particularity in the answer does not preclude the defendant from seeking pre-trial disclosure related thereto (Medical Polis, P.C. v. Progressive Ins. Co., 35 Misc 3d 139(A); Lexington Acupuncture, P.C. v. General Assurance Co., 35 Misc 3d 42). The defendant has put forth sufficient factual allegations, such as the federal indictment of plaintiff’s principle owner concerning fraudulent medical clinics, warranting such manner of disclosure herein. The defendant is not required to demonstrate good cause for such disclosure as it is material and necessary to its defense (One Beacon Ins. Group v. Midland Med. Care, P.C., 54 AD3d 738). In light of the foregoing the defendant is entitled to an examination before trial of plaintiff’s principle owner (see Medical Polis, P.C. v. Progressive Ins. Co., supra; New Era Acupuncture, P.C. v. State Farm, 24 Misc 3d 134).

Accordingly, the plaintiff is hereby directed to serve full and complete responses to all of the defendant’s demands for disclosure within thirty (30) days from the date of mailing of this order by the court. The plaintiff shall produce its principle owner for an examination before trial within thirty (30) days after serving responses to the demands for disclosure at a time, date and place mutually convenient to the parties.

Dated:June 5, 2012J.D.C.