SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered September 20, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,250.45.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the matter proceeded to trial solely with respect to plaintiff’s claims with regard to assignor Ganiyu Salawu. At trial, the parties stipulated that plaintiff proved its prima facie case, that defendant timely and properly denied plaintiff’s claims and that no payments were made on the claims. The parties also stipulated that the sole issue at trial was whether
the assignor’s alleged injuries were causally related to the motor vehicle accident. Defendant called the assignor and a biomechanics expert as witnesses. Plaintiff did not call any witnesses. The court awarded judgment to plaintiff, and this appeal by defendant ensued.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Having stipulated to plaintiff’s prima facie case, defendant had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18 [1999]). Defendant failed to meet this burden.

A fair reading of the assignor’s testimony supports a conclusion that prior to the accident, the assignor was wearing a seat belt which was not working properly. Defendant’s expert [*2]testified that, based upon his investigation, and his review of the documents, “only an unrestrained occupant” could have made contact with the windshield. However, in his report, which was admitted into evidence, the expert concluded that any injuries sustained by plaintiff’s assignor were “causally attributed directly” to the improper use of the seat belt. In view of the conflicting inferences that could be drawn from the assignor’s testimony and the expert’s testimony and, indeed, the ambiguous statements by defendant’s expert, we find no basis to disturb the court’s determination accepting the assignor’s testimony and finding in favor of plaintiff. Defendant’s remaining contentions are either unpreserved for appellate review or without merit.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: March 27, 2008

[*1]

District Court of Nassau County, First District, March 26, 2008

APPEARANCES OF COUNSEL

Friedman, Harfenist, Langer & Kraut, Lake Success, for plaintiff. Law Offices of Robert P. Macchia, Mineola, for defendant.

{**19 Misc 3d at 775} OPINION OF THE COURT

Anthony W. Paradiso, J.

{**19 Misc 3d at 776}Plaintiff moves pursuant to CPLR 2221 (d) and (e) to reargue and renew the prior order of this court dated May 23, 2007. The defendant opposes the motion. For the reasons that follow, the motion is granted. Upon reconsideration, the court adheres to its original determination.

In moving to reargue pursuant to CPLR 2221 (d), the plaintiff asserts that the court overlooked or misapprehended matters of law and fact in granting the relief requested by the defendant. Specifically, the plaintiff argues that Allstate’s motion was, in essence, one to strike the notice of trial which was not supported by the requisite affidavit detailing the need for additional discovery required by section 212.17 (d) of the Uniform Civil Rules for the District Courts (22 NYCRR 212.17 [d]). Plaintiff insists that Allstate did not demonstrate the unexpected or unanticipated circumstances that necessitated the late discovery. In this regard, plaintiff points out that counsel for the defendant examined plaintiff’s principal, Dr. Robert Hard, on five different occasions during the period from October 2004 through July 2005, and waited until August 2007 to make its motion to amend, consolidate and compel additional discovery.

The court is not persuaded by the plaintiff’s arguments. “A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed” (Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254 [2d Dept 2001]). Such a misstatement renders a notice of trial “a nullity” (see Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2d Dept 2002]). Here, a review of the transcripts of Dr. Hard’s examination under oath (EUO) reveals that defendant’s counsel requested the documents sought in the motion under review on numerous occasions during the course of the examination. The documents requested included plaintiff’s agreement with Bayside Management Inc. (at 70), corporate tax returns (at 51, 148), facility leases (at 215), and banking records (at 314). Counsel [*2]for the defendant renewed his demand for these documents on numerous occasions during the course of Dr. Hard’s examination (at 177, 266, 363). Despite these outstanding demands, the plaintiff filed its notice of trial on August 18, 2005, just one month after the last demand for the documents, and six months after the Court of Appeals decided State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), which clearly rendered the material sought relevant to Allstate’s defense of fraudulent incorporation (see Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14{**19 Misc 3d at 777} Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d Dept 2007]).

The plaintiff is mistaken, if not disingenuous, in its position that the defendant never requested these items in writing. The EUO notice sent to Dr. Hard on May 26, 2004 specifically required him to produce all documents relating to the plaintiff’s ownership, corporate structure, and affiliation with any consulting, management, billing or collection entities, as well as tax returns, banking documents, and leases. Indeed, plaintiff’s attorney acknowledged this very fact in his affirmation in opposition to the original motion, which included the EUO notice and document request as exhibit C.

Accordingly, the court did not overlook or misapprehend any matters of fact or law when it, in effect, struck the plaintiff’s notice of trial, allowed the defendant to amend its answer to assert a Mallela defense, and compelled the production of outstanding discovery relevant to that defense. Contrary to plaintiff’s assertion, the moving affirmation of Allstate’s attorney on the original motion set forth sufficient allegations of fraud in the corporate form to justify the amendment and compel the discovery (see Bromer Med., P.C. v Chubb Indem. Ins. Co., 18 Misc 3d 138[A], 2008 NY Slip Op 50298[U] [App Term, 1st Dept 2008]).

The court is also convinced that it did not overlook or misapprehend any matters of fact or law in allowing the consolidation of all pending no-fault cases involving the same parties. A motion for consolidation is addressed to the sound discretion of the court, and absent substantial prejudice to the opposing party, is proper where there are common questions of law and fact (see RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776 [2d Dept 2006]). Here, it is evident that all of the no-fault matters pending between Eastern Medical and Allstate are subject to the same Mallela defense of fraudulent incorporation. If proven, the applicable law would require a dismissal of all pending actions.

Consolidation for the purpose of entertaining the Mallela defense certainly serves the interests of judicial economy and efficiency. Be that as it may, if Allstate is unable to prove its Mallela defense, then the court agrees with plaintiff that the consolidation of the pending no-fault actions becomes untenable as each is driven by unique facts arising from separate and distinct circumstances. Accordingly, the court takes this opportunity to clarify that the consolidation of the pending no-fault matters is for the sole purpose of determining the merits{**19 Misc 3d at 778} of Allstate’s Mallela defense, and is without prejudice to a subsequent motion to sever the cases should that defense fail.

In moving to renew pursuant to CPLR 2221 (e), the plaintiff asserts that there has been a change in the law that would change the prior determination. Specifically, the plaintiff argues that the Appellate Division’s recent decision in Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277 [2d Dept 2007]), “radically reshaped the landscape of fraud based defenses,” such that Allstate’s Mallela defense is untimely and therefore unavailable. The court concludes that the plaintiff is mistaken in its application of Fair Price to the facts at hand. [*3]

In Mallela, the Court of Appeals held that a medical provider is not entitled to recover first-party no-fault benefits under Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12) if it is fraudulently incorporated. As in the present case, the insurer in Mallela alleged that the medical provider, while nominally owned by a physician, was actually operated by nonphysicians in violation of New York’s licensing statutes. The Mallela court declared the regulation valid and held that “carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law[s]” (Mallela, 4 NY3d at 321).

On June 12, 2007, the Appellate Division, Second Department, decided Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277 [2007]). That action involved an insurer’s attempt to deny a fraudulent claim for medical supplies almost two years after the 30-day pay or deny period mandated by Insurance Law § 5106 (a) had expired. The court found the fraud defense untimely.

In reaching this conclusion, the Appellate Division relied upon Court of Appeals precedents in Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]) and Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) to draw a distinction between defenses based on a lack of insurance coverage in the first instance and those based on policy exclusions. Acknowledging that the preclusion rule cannot be applied so as to create coverage where none otherwise exists, the court held that the fraud alleged in Fair Price did not go to the issue of coverage and thus required a timely denial. Summarizing the applicable law, the Appellate Division explained: “In determining whether compliance with the 30-day rule is required, the pertinent inquiry is whether the asserted defense is based on a lack of coverage. The kind of fraud scheme{**19 Misc 3d at 779} involved—and whether there is any fraud scheme at all—is irrelevant” (Fair Price, 42 AD3d at 285).

Relying on the above pronouncement, the plaintiff asserts that Allstate’s allegations of fraud in the corporate form, even if true, should have been asserted in a timely denial. Since they were not, plaintiff insists that Allstate is precluded from raising such a fraud defense at this time. The problem with this argument is that it assumes the Court of Appeals was ignorant of its own precedent in Presbyterian and Central Gen. when it decided Mallela, and that the Fair Price court chose to somehow abrogate Mallela in its decision. The court rejects these unsupported assumptions.

It is evident that the appellate courts in Presbyterian, Central Gen. and Fair Price were dealing in large measure with contract interpretation—the extent to which policies of insurance covered certain situations, and the extent to which the insurers’ obligations under those policies were subject to applicable laws and regulations. In contrast, the Mallela court was not dealing with contract interpretation, or the interplay between policies of insurance and applicable laws and regulations. Rather, Mallela dealt strictly with statutory interpretation.

The question certified to the Court of Appeals in Mallela was whether insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims. The Mallela court was simply faced with the task of determining whether a rule promulgated by the Superintendent of Insurance (11 NYCRR 65-3.16 [a] [12]) was valid. The rule excluded payments made to fraudulently licensed providers from the meaning of “basic economic loss” as set forth in Insurance Law § 5102. Acknowledging that the rule set up a conflict between the prompt payment goals of the no-fault law on [*4]the one hand, and the antifraud goals embodied in the State’s licensing statutes on the other, the court unhesitatingly pronounced that the regulation was valid, and that “[w]here, as here, the Superintendent has properly crafted a rule within the scope of his authority, that rule has the force of law and represents the policy choice of this State” (Mallela, 4 NY3d at 321).

Significantly, in Mallela there was no contention that the medical services in question were unnecessary or improperly rendered, or that the insureds were otherwise ineligible for coverage. There was no suggestion that the payments were not otherwise required under the terms of the policies. The court{**19 Misc 3d at 780} specifically noted as much. Even so, the Mallela court did not qualify the insurer’s right to deny payment to the fraudulently incorporated provider by requiring a timely denial. In this regard, it is instructive that the Mallela court quoted a relevant passage from its earlier decision in Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d 854, 866 [2003]), which provided that the challenged regulations “create not a new category of exclusion, but rather merely a condition precedent with which all claimants must comply in order to receive benefits under the statute” (Mallela, 4 NY3d at 321 n 3 [emphasis added]).

This court is convinced that Fair Price did nothing to diminish an insurer’s right to assert a Mallela defense in appropriate circumstances, even after the 30-day pay or deny period of Insurance Law § 5106 (a) has expired. Such a defense is not predicated on a policy exclusion or the extent of coverage provided by a contract of insurance. Nor does it arise from the operation of an insurance policy within the context of the no-fault laws and regulations. A Mallela defense is not a policy-based defense at all, but rather a statutory defense that arises from a claimant’s failure to comply with applicable sections of the Business Corporation Law, Limited Liability Company Law and/or Education Law. It is a defense based on the claimant’s failure to satisfy a condition precedent to payment. It is not concerned with fraudulent acts that trigger policy exclusions or implicate policy coverage.

Thus, in Metroscan Imaging, P.C. v GEICO Ins. Co. (13 Misc 3d 35 [App Term, 2d Dept 2006]), the Appellate Term affirmed an order of the Civil Court which consolidated multiple no-fault actions and allowed the insurer to assert a Mallela defense in each. The court held that medical providers who fail to meet applicable licensing requirements are not entitled to no-fault reimbursement “since their authority to render professional services was obtained through fraudulent means” and possession of such authority is “a prerequisite to reimbursement” (id. at 38).

Likewise, in Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d Dept 2007]), the Appellate Term reversed that portion of a Civil Court order which granted summary judgment to a medical provider, concluding that the insurer was entitled to discovery on the relevant issue of whether the medical provider was fraudulently incorporated (see Midwood at *1). Significantly, the court determined that a fraudulent incorporation{**19 Misc 3d at 781} defense “is a nonwaivable defense and is therefore not subject to the 30-day preclusion rule” (id.). The court affirmed the lower court’s refusal to sever the unrelated actions, concluding that the fraudulent incorporation defense was “likely to raise common issues of law or fact” in all five claims (id. at *2).

The undersigned cited the Metroscan Imaging and Midwood Acupuncture decisions in support of the court’s prior order, and continues to believe that these cases control the matter under review. Significantly, at least one Appellate Term decision after Fair Price concluded that [*5]a Mallela defense “is not waived by the failure to assert it in a denial of claim form, nor is it precluded as a result of an untimely denial” (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 39 [App Term, 2d Dept 2007] [citations omitted]).

Accordingly, upon review of its decision dated May 23, 2007, the court adheres to its original determination.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated March 21, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Ben R. Barbato, J.), dated March 21, 2007, affirmed, without costs.

Defendant’s motion for summary judgment dismissing this action for no-fault first party benefits on the ground that the underlying medical services were performed by an independent contractor was properly denied. In opposition to the motion, the plaintiff provider submitted the treating physician’s affidavit stating that he is the plaintiff’s president and sole shareholder, not an independent contractor, and that the box for “Independent Contractor” on the NF-3 claim form had been marked erroneously. In these circumstances, the record presents issues of fact as to whether the services were performed by plaintiff through its officer rather than an independent contractor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 24, 2008

Civil Court of the City of New York, Richmond County

025762/06

Counsel for Plaintiff:

Colleen Terry, Esq.

Baker, Sanders Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:

Lindsay Alexander, Esq.

Epstein & McDonald

One Whitehall Street, 13th Floor

New York, NY 10004-2109

212-248-9100

Katherine A. Levine, J.

Defendant Nationwide Property and Casualty (“defendant”) moves to dismiss plaintiff Cambridge Medical, P.C. A/A/O Richard Edwards ( “plaintiff”) complaint for failure to comply with defendant’s Demand for a Verified Bill of Particulars and Combined Demand Request pursuant to C.P.L.R § 3126. Defendant alleges that because plaintiff failed to respond to it’s discovery request, defendant would be severely prejudiced at trial. In the alternative, defendant requests that the court grant summary judgment because the institution of the lawsuit is premature as plaintiff failed to comply with its verification requests.

In its verification requests, defendant’s claims department asked for certain information: the certificate of incorporation, the SS4 (application of federal employer identification program), the IRS acknowledgment letter approving TIN and the completed W-9 form, the name, address, license, certification, etc. for each person connected with the treatment or testing of the assignor in the instant claim, and sale of shares of ownership. Although defendant does not so state, the aforementioned requests appear to give rise to a defense of fraudulent incorporation in violation of the truth seeking opportunity set forth in 11 N.Y.C.R.R. sec.65.3.16(a)(12).

In its Demand for a Verified Bill of Particulars, counsel for defendant seeks a plethora of documents including items which appear to be similar to those requested in the verification requests: the names, addresses and birth dates of all directors, officers, shareholders, employees and owners listed on the stock certificate for plaintiff’s facility at time services were rendered (1-5).

Plaintiff asserts that it provided discovery that was proper and that defendant is not entitled to further discovery since it is merely engaging in a fishing expedition that is prohibited by State Farm Insurance Co. v. Mallela, 4 NY3d 313 (2005) and the regulations. Plaintiff also argues that under the No-Fault Law, the need for disclosure “must be substantiated by the [*2]reasons for the denial contained in the NF-10 and not simply predicated upon a plethora of unreserved affirmative defenses inserted in the answer as an afterthought.” See Metropolitan Radiological Imaging v. State Farm Mutual Auto Ins. Co., 2005 Slip Op 25063 (NY Civil Ct. 2006). Finally, plaintiff asserts that the verification forms were not timely mailed and that the affidavits of mailing were inadmissible.

In Mallela, the Court of Appeals held that insurers may withhold payment for medical services provided by fraudulently licensed medical service corporations to whom patients, who are covered by no-fault insurance, have assigned their claims. Insurance Law §5102 requires no-fault carriers to reimburse patients or their medical provider assignees for “basic economic loss.” In order to combat incidences of fraud, the Superintendent of Insurance promulgated 11 N.Y.C.R.R. 65-3.16(a)(12), which excludes from the definition of basic economic loss payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement. 4 NY3d at 320. After finding this regulation valid, the Court held that carriers “may look beyond the face of licensing documents to identify wilful and material failure to abide by state and local law.” Id at 321. Addressing the defendants’ contention that the insurance companies would turn this “investigatory privilege into a vehicle for delay and recalcitrance,” the Court stated:

“The regulatory scheme …. does not permit abuse of the truth-seeking opportunity that 11 N.Y.C.R.R. sec. 65-3.16(a)(12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause. (See N.Y.C.R.R. sec 65-3.2(c). In the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do…We expect and the Legislature surely intended, vigorous enforcement by the Superintendent against any carrier that uses the licensing requirement regulation to withhold or obstruct reimbursement to non-fraudulently incorporated health care providers. “

4 NY3d at 322.

The issue presented by these motions is therefore whether the language contained in Mallela requiring that a defendant insurer show “good cause” by demonstrating behavior on the plaintiff’s part ” tantamount to fraud,” applies to discovery requests and or verification requests. Mallela does not squarely address this issue.

This court follows the reasoning of Judge Sweeney in Carothers v. Insurance Companies et al, 13 Misc 3d 970 (Civil Ct., Richmond Co. 2006) and adopts that court’s finding that “good cause” is not a mandatory requisite to ordering discovery. In Carothers, supra , Judge Sweeney first noted that the regulation interpreted by the Mallela court – 11 NYCRR 65-3.2

(c) – “demands that the carriers delay payment of claims to pursue investigations solely for good cause.” Insurers are prohibited from demanding “verification of facts unless there are good reasons to do so” and are required to request verification of facts “as expeditiously as [*3]possible.” Judge Sweeney then found that the “investigations the Court was discussing in Mallela are those conducted by insurers during the claims process in accordance with their entitlement under the regulatory scheme to seek verification of claims (11 NYCRR part 65) and not those conducted by litigants during the discovery process” 13 Misc 3d at 972.

However, Judge Sweeney then noted that the entire discussion of good cause in Mallela was non-binding dicta since the only question that the Mallela court agreed to answer upon certification was whether “a medical corporation that was fraudulently incorporated” was entitled to be reimbursed by insurers for medical services rendered by licensed medical practitioners” Id at 973 citing 4 NY3d at 320.

Article 31 of the CPLR governs discovery actions before the civil court, and its disclosure provisions simply do not condition discovery upon a showing of “good cause”.^[FN1] Judge Sweeney found that the guiding principle behind article 31 of the CPLR was that there should be “full disclosure of all matter material and necessary in the prosecution and defense of an action” (CPLR §3101 (a)). The words material and necessary are to be interpreted liberally and the test is “one of usefulness and reason” to assist in the preparation for trial by sharpening the issues. 13 Misc 3d at 973 citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968). See also, Midwood Acupuncture P.C. v. State Farm Mutual, 14 Misc 3d 131A, 836 NYS2d 486 ( App. Term, 2d Dept. 2007); Midborough Acupuncture P.C. v. State Farm Ins. Co., 13 Misc 3d 58 (App. Term, 2d Dept. 2006) (both applying the material and necessary standard).

Furthermore, since the “defense of fraudulent incorporation is a complete defense to a claim for no-fault benefits, one that is not subject to the rules of preclusion,” it appears that the bar against which to measure whether a defendant has shown that its discovery requests on the issue of fraudulent incorporation are “material and necessary” is quite low. Id at 975. See Lexington Acupuncture, P.C. v. State Farm Insurance Co., 12 Misc 3d 90, 820 NYS2d 385 ( App. Term, 2d Dept. 2006); A.B. Medical Services PLLC v. Prudential Propr. & Cas. Co., 11 Misc 3d 137[A], 816 NYS2d 693 (App. Term 2d & 11th Jud. Dists. 2006). See also, Midborough Acupuncture PC v. State Farm Ins Co. Supra 13 Misc 3d at 58 (defendant’s papers establish that defendant’s discovery requests concerning whether plaintiff was fraudulently incorporated are material and necessary).

However, in the end, “the scope of discovery is not unlimited” and is left to the broad discretion of the trial court, which must assess the request on a case by case basis taking into consideration the “intrusiveness of the discovery device and the merits, or lack thereof, of the claim” 13 Misc 3d at 974 citing Greater NY Mutual Ins. Co. v. Lancer Ins. Co., 203 AD2d 515, 517 (2d Dept. 1994). Since the amounts in dispute in most no- fault claims are small, the court should not “hesitate to exercise its protective powers under CPLR §313(a) so as to curtail discovery where it may become an unreasonable annoyance and tend[s] to harass and overburden the other party”, Conrad v. Park, 204 AD2d 1011, 1012 ( 1994), or “to prevent the proverbial [*4]fishing expedition” Id citing Auerbach v. Klein, 30 AD3d 451, 452 (2d Dept. 2006); Lattire v. Smith, 304 AD2d 534, 536 (2d Dept. 2003). To this end, Judge Sweeney found that the primary tool to be used by the court to control and supervise the scope of discovery was the protective order pursuant to CPLR §3103(a). Id at 974.

This court is not convinced that different standards should govern the verification requests made by an insurance company during its investigatory stage, as opposed to discovery requests made by counsel for an insurance company during litigation for Mallela type documents. As set forth above, the scope of verification requests was not at issue in Mallela. Application of a higher standard for verification requests does not make sense since an insurance company should be able to ascertain as expeditiously as possible whether a medical provider is fraudulently incorporated under the No- Fault Law. However, since the Court of Appeals did find that the regulations preclude insurance carriers from delaying payment of claims unless they can show “good cause,” which demands a demonstration of behavior tantamount to fraud, this court must abide by the distinction.

The verification request for corporate documents does not contain any assertion that plaintiff Cambridge Medical engaged in any behavior that would cause one to suspect that it has been fraudulently incorporated. (See Exhibit C annexed to motion). As such, plaintiff need not further respond to the verification requests and this court denies the motion for summary judgment.

Defendant also fails to offer any justification for its request for Mallela type documents in its subsequent discovery requests. Its answer is void of any affirmative defense that defendant has reason to believe that the plaintiff may be fraudulently incorporated. However, in light of the broad latitude afforded to the courts in this department to grant Mallela type discovery requests, this court, upon conducting a balancing test, directs that plaintiff produce: the names, addresses and birth dates of all directors, officers, shareholders and owners listed on the stock certificate for plaintiff’s facility at the times services were rendered. Pursuant to CPLR §3103 (a) , this court issues a protective order limiting discovery to the aforementioned items, as the remainder of the bill of particulars ask for information that is either within the defendant’s knowledge or is unduly burdensome, irrelevant or immaterial.

For the above reasons, defendant’s motions to dismiss and/or summary judgment are denied. Given this ruling, this court need not consider plaintiff’s allegations with regard to the admissibility of the verification forms. It does appear, however, that the affidavit of mailing does allege personal knowledge of the mailing procedures and hence comports with the instructions set forth in Delta Diagnostic Radiology, P.C. a/a/o Lidaine Philogene v. Chubb Group of Insurance,17Misc 3d 16 (2007)..

This constitutes the decision and order of the court.

Dated: March 21, 2008___________________________

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

Appearances

Counsel for Plaintiff:

Colleen Terry, Esq.

Baker, Sanders Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:

Lindsay Alexander, Esq.

Epstein & McDonald

One Whitehall Street, 13th Floor

New York, NY 10004-2109

212-248-9100

Footnotes

Footnote 1:In a footnote Judge Sweeney noted that although a showing of good cause is not a mandatory prerequisite to discovery, good cause is a factor that “might be considered” in determining the permissible scope of discovery

Civil Court of the City of New York, Queens County

37719 QCV2007

Attorneys for plaintiff:

Baker, Sanders, Barshay, Grossman, Fass,

Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

( By: Todd Muhlstock, Esq.)

Attorneys for defendant:

Nicolini, Paradise, Ferretti & Sabella

114 Old Country Road, Ste. 500

Mineola, NY 11501

( By: Mitchell Lustig, Esq.)

William A. Viscovich, J.

Plaintiff health care provider brought the within No-Fault action against defendant insurer to recover for services rendered on August 15, 2002 to the insured, Jose Rodriguez, as assignor, relating to injuries allegedly arising out of a motor vehicle accident involving a vehicle owned and operated by Rodriguez on July 31, 2002. The parties stipulated as to the timely and proper submission by plaintiff to defendant of the underlying NF-3 proof of claim, that said claim is unpaid and as to the assignment of benefits from Rodriguez to plaintiff. Hence, plaintiff’s prima facie case was proven and the plaintiff rested.While acknowledging that there was no timely denial in this matter, defendant asserted the affirmative defense of lack of coverage, premised on its contention that the alleged loss did not arise out of a covered accident. Instead, the defendant premises its defense upon the argument that the accident in question was a [*2]staged, intentional collision. A staged, deliberate collision is not a covered accident under no-fault (see Liberty Mutual Insurance Company -v- Goddard, 29 AD 3rd 698 [ 2nd Dept. 2006]; Eagle Insurance Company -v- Davis, 22 AD 3rd 846 [ 2nd Dept. 2005]; State Farm Mutual Automobile Insurance Company -v- Laguerre, 305 AD 2nd 490 [ 2nd Dept. 2003]). Moreover, the Appellate Division, Second Department has held that the basic issue in such case is whether the loss arose from a deliberate occurrence outside the scope of coverage. (GEICO -v- Shaulskaya, 302 AD 2nd 522 [ 2nd Dept. 2003]; see also Fair Price Medical Supply v. Travelers Indemnity Company, 42 AD3rd 277 [ 2nd Dept. 2007]. As such, defendant would not be bound by the 30 day rule for issuance of denials normally mandated by Insurance Law § 5106(a) and the applicable No-fault regulations (Central General Hospital -v- Chubb Group of Insurance Companies, 90 NY 2nd 195 [1997]).

In support of its affirmative defense, the defendant called as witnesses both the assignor, Jose Rodriguez, and an investigator in its Special Investigations Unit.

The investigator testified that he had only reviewed this file for the first time a few weeks before the trial and, in fact, was not totally prepared to testify. In sum and substance, his investigation consisted of running a prior claim history on Mr. Rodriguez, but he could not recall the amount of dollars that Mr. Rodriguez had allegedly made claims for in the past. In addition, he testified that he himself had not made the final determination as to the possibility of fraud in this matter but instead a “committee” organized by the defendant had determined that it was not a meritorious claim.

Ironically, it was Mr. Rodriguez’s testimony itself that had the potential to prove that the accident in question had been staged. He not only testified as to the accident itself, but also as to both a previous and subsequent accident in which he was involved, occurring respectively on September 18, 2000 and August 5, 2002.

When defense counsel attempted to question Rodriguez as to the specifics of the treatment received from plaintiff provider following the underlying alleged accident of July 31, 2002, plaintiff objected, citing Fair Price, supra, arguing that evidence of non-treatment could not be used to prove a staged accident. This court reserved its decision on the objection and permitted Mr. Rodriguez to answer this line of questioning subject to a later ruling on the issue, which is the primary subject of this decision, along with other commentary.

Through the use of an official Spanish Court Interpreter, Mr. Rodriguez testified as to the accident, how it happened, where it happened and what he did thereafter, including seeking out medical attention. Perhaps because of the difficulties of translation or because of nervousness, the witness often appeared uncertain and confused about, or unable to recall, the exact date and place of his visits to the plaintiff. Mr. Rodriguez was clear about one thing, however- he never saw a nurse or doctor and never received any medical treatment whatsoever. All he could recall was going to a doctor’s office, having the staff fill out some forms based upon an accident report that he had provided to them and then leaving because he did not think the doctor would help him since he had no money. Mr. Rodriguez was adamant that he received no care or treatment and that all he did was go home and take some Advil.

As to the substance of the plaintiff’s objection to Mr. Rodriguez’s testimony regarding a lack of treatment, the court overrules plaintiff’s objection and allows the [*3]testimony as to non-treatment to be used by the defense. The Fair Price decision, according to the plaintiff, stands for the proposition that in a case where the fraud alleged by the defendant insurer pertains to the lack of services billed for (or more specifically in the Fair Price case- the failure to provide medical supplies billed for), such fraud is “not related to the existence of coverage in the first instance” ( 42 AD 3rd, at 284) and, thus, is not an affirmative Chubb defense.

This court, however, has no intention whatsoever of determining if plaintiff is entitled to recover no-fault benefits based on the extent to which the claimed medical services were actually provided. The court agrees with the plaintiff and recognizes that, pursuant to Fair Price, the extent to which the medical services billed for in this action were actually rendered is not the ultimate issue for the court to decide – to make it so would constitute a total disregard for the unequivocal appellate law that controls this issue. Moreover, as both parties have stipulated to plaintiff’s prima facie case, plaintiff has been deemed to have met its burden as to the medical necessity of the services rendered- which burden defendant has elected neither to rebut by way of any requisite timely denial nor by the specific affirmative defense asserted. As such, this court is bound by same, notwithstanding the assignor’s testimony which is extremely credible as to the possibility that the claimed services were never provided.

Unfortunately, the only issue which this court may address under Fair Price is whether there was a lack of coverage as contended by defendant on the basis that the alleged July 31, 2002 accident was ” staged”. Any testimony by Rodriguez regarding his treatment or lack thereof is being used by the court solely as evidence as to whether the loss in question resulted from an actual “covered” accident or arose from a staged collision. Any evidence that Mr. Rodriguez was not treated as claimed by the plaintiff provider or was treated to a lesser extent than claimed, has relevance only to the extent that common sense dictates that it is less likely that the participants in such a “staged” collision would actually receive treatment than in a true accident. It also follows that the alleged victim of a “staged” accident would be less likely to actually accept the risk of real injury arising from an unnecessary course of treatment (Keep in mind that this court does concede that a real injury may arise from a staged accident, but does not believe this to be the case herein).

Given the weakness of the SIU investigator’s testimony, however, the testimony of Mr. Rodriguez as to a lack of treatment alone is not enough for defendant to meet its burden in rebutting plaintiff’s prima facie case. As one court has noted, ” [W]hile some intentional collisions are the products of insurance fraud schemes, others are not. In all such cases, it is the deliberate, non-accidental character of the incident that makes it ineligible for No-Fault coverage.”(V.S. Medical Services, P.C. -v- Allstate Insurance Company,11 Misc 3rd 334, at 338 [ Civil Court, City of New York, Kings Co. 2006]; see, also Universal Open MRI of the Bronx ,P.C. -v- State Farm Mutual Automobile Insurance, 12 Misc 3rd 1151(A) [ Civil Court, City of New York, Kings Co. 2006]). Therefore, defendant’s burden of proof is a preponderance of the credible evidence, which has not been established.

What distresses the court is that while the defendant was not able to meet its burden of proof as to a “staged accident”, there was credible evidence of provider fraud. While a full trial on that issue may reveal that there was no fraud and that services were [*4]in fact rendered. the holding in Fair Price assures that neither the court nor the defendant are able to delve further into that issue. The end result is that this court is put in the potential position of having to make an award to a possibly unethical provider.

This is exactly the concern expressed by Justice Joseph Golia in his dissent in the Appellate Term rendering of Fair Price Medical Supply Corp. a/a/o Nivelo v. Travelers Indemnity Company, 9 Misc 3rd 76 [ App. Term, 2nd & 11th Jud. Dists. 2005], in which the majority decision was upheld by the Appellate Division in the Fair Price decision that controls herein. Like Justice Golia, this court is “under the firm and unshakable belief that neither the Legislature nor the Insurance Department ever intended for an insurance carrier, or anyone else for that matter, to be forced to pay for medical equipment [or in this case, medical treatment] that was never provided “(Fair Price, supra, dissent at 82). But, alas, that is the potential outcome all but acknowledged by both the Appellate Term and Appellate Division Fair Price holdings.

As such, this court, as constrained by higher authority, regretfully awards judgment to the plaintiff in the sum of $ 899.43, plus statutory interest, statutory attorneys fees, costs and disbursements.

The foregoing constitutes the decision and order of this court.

_____March 19, 2008___________________________________DateWilliam A. Viscovich

Judge, Civil Court

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated December 7, 2006. The order granted that branch of defendant’s motion seeking to dismiss the complaint based on the pendency of a prior action in Queens County Civil Court only to the extent that the court deemed the prior action discontinued, and in effect denied that branch of defendant’s motion seeking the imposition of costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR).

Order modified by striking the provision deeming the prior action in Queens County Civil Court discontinued and by providing that defendant’s motion is granted to the extent of dismissing the complaint; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based on the pendency of a prior action for the same cause of action (CPLR 3211 [a] [4]). The court granted defendant’s motion only to the extent that the court in essence deemed discontinued the prior action in Queens County Civil Court.

In our view, the court should properly have dismissed the instant complaint. The record demonstrates that both lawsuits are predicated on the same cause of action, and that the prior action had proceeded to discovery. Moreover, as a general matter, deference is accorded to the first action filed (see Reckson Assoc. Realty Corp. v Blasland, Bouck & Lee, 230 AD2d 723 [1996]; Matter of Wallach, 130 AD2d 495, 496 [1987]), and no sufficient reason was shown to depart from this rule here. Accordingly, we modify the order to provide for the dismissal of the instant complaint (see Packes v Cendant Mtge. Corp., 19 AD3d 386 [2005]).

The branch of defendant’s motion seeking costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR) was properly denied as plaintiff’s actions, under the circumstances presented, do not rise to the level warranting the imposition of such costs. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 24, 2006. The order, insofar as appealed from, denied the petition to vacate a master arbitrator’s award.

Order, insofar as appealed from, reversed without costs, awards of the master arbitrator and arbitrator vacated, and matter remitted for a rehearing before a different arbitrator.

R.J. Professional Acupuncturist, P.C. (R.J.) commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The insurer opposed the petition, asserting, inter alia, that the arbitrator properly found that R.J. failed to make a prima facie showing of its entitlement to reimbursement since it did not provide documentation to support the bills for the services which it rendered. The insurer also cross-petitioned for confirmation of the master arbitrator’s award. The court denied the petition and the cross petition. This appeal by R.J. ensued.

The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was “supported by a reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320 [1994]). Applying this standard to the instant proceeding, we find that the master arbitrator’s award and the arbitrator’s award were irrational (see Matter of State Farm [*2]Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534) since they were contrary to settled law.

It is well settled that a provider seeking to recover assigned first-party no-fault benefits makes a prima facie showing by demonstrating that a complete proof of claim setting forth the fact and amount of the loss sustained was submitted to the insurer and payment of no-fault benefits was overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Notwithstanding the foregoing, the arbitrator held that R.J. failed to make a prima facie showing because it did not submit sufficient additional evidence to substantiate its bills for the services rendered. Consequently, the
court below should have vacated the master arbitrator’s award as well as the arbitrator’s award (see e.g. Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]). Accordingly, the matter is remitted for a new hearing before a different arbitrator (see Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur for the reasons stated in my concurrence in Metropolitan Radiological Imaging, P.C. v Country-Wide Insurance Company (___ Misc 3d ____, 2008 NY Slip Op _______ [No. 2006-1670 K C], decided herewith).
Decision Date: March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered July 31, 2006. The judgment granted the petition to vacate the master arbitrator’s award and awarded petitioner unpaid no-fault benefits in the principal sum of $1,791.73.

Judgment affirmed without costs.

Metropolitan Radiological Imaging, P.C. (Metropolitan) commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The insurer opposed the petition, asserting that the master arbitrator’s award was not irrational. The court granted the petition to vacate the master arbitrator’s award, and awarded petitioner the principal sum of $1,791.73. The instant appeal by the insurer ensued.

The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was “supported by a reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320 [1994]). Applying this standard to the instant proceeding, we find that the master arbitrator’s award was irrational (see Matter of State Farm Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534) since he upheld the arbitrator’s determination which was contrary to settled law (see Mount Sinai Hosp. v Joan Serv. Corp., 22 AD3d 649 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]

It is well settled that a provider seeking to recover assigned first-party no-fault benefits makes a prima facie showing by demonstrating that a complete proof of claim setting forth the fact and amount of the loss sustained was submitted to the insurer and that payment of no-fault benefits was overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004], supra). Notwithstanding the foregoing, the arbitrator held that Metropolitan failed to make a prima facie showing because it did not submit sufficient additional evidence to establish the medical necessity of the services rendered. Consequently, the court properly granted the petition and vacated the master arbitrator’s award.

Under the circumstances presented, we affirm the judgment (Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; cf. Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]).
Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law relied on by the majority which I find inconsistent with higher court precedents and generally contrary to my views.

Most specifically, I am referring to what appears to be the standard of review which was utilized by the majority in this case. The majority herein applies the more exacting standard applicable to judicial review of “compulsory” arbitration proceedings. It applies this standard without addressing the fact that in this case it is the claimant-provider which is seeking judicial review and not the defendant insurance carrier. The reason that I raise this distinction is that a claimant-provider has the unfettered choice to elect to bring its claim before the court or an arbitrator, whereas a defendant insurance carrier is compelled to submit to an arbitration proceeding if the claimant chooses to prosecute its claim in that forum.

Although I find this distinction, between one party which has a choice and the other which does not, to be vital, I nevertheless raise my concerns by way of a concurrence and not in dissent by reason of the Appellate Division, Second Department’s holding in Matter of Shand (Aetna Ins. Co.) (74 AD2d 442 [1980]), which, I submit, provides the support for the finding of the majority on this issue.

The Appellate Division, in Matter of Shand (Aetna Ins. Co.), held that all no-fault arbitration determinations are to be reviewed as if they were “compulsory arbitration” regardless of whether the review is requested by the insurance carrier, which is compelled to submit to arbitration, or the claimant, which is not compelled to submit to arbitration. The Appellate Division relied upon two cases for the principle that a clamant’s application to review a no-fault arbitrator’s award should be determined by the higher standard of compulsory arbitration even though the claimant had freely elected to have the matter heard by an arbitrator.

The Shand court cites to Matter of Conroy v Country Wide Ins. Co. (75 AD2d 852 [1980]), which was decided in the same court exactly one week earlier and without any specific reference to this issue. It also cites to a Supreme Court, Bronx County case, Matter of Hicks (Royal Globe Ins. Co.) (96 Misc 2d 477 [1978]). In Hicks, it appears that the court may have [*3]been confused regarding the distinction between “binding” arbitration and “compulsory” arbitration. The reason stated by the Hicks court is the belief that “parties to voluntary arbitration waive their due process right to judicial review, while the parties to compulsory arbitration do not” (id. at 478-479). This appears to be a valid expression of the difference between binding and non-binding arbitration and not between voluntary and compulsory arbitration.
The Appellate Division, Second Department, appropriately ruled in Matter of Shand (Aetna Ins. Co.) (74 AD2d at 446):
“When a part of a controversy is compelled by statute to submit to arbitration. . . and thereby loses the right of initial resort to a judicial forum. . . the right to review the resulting arbitration award cannot in turn be overly limited in scope without involving a due process issue” (emphasis added).
Unfortunately, the Shand court also found that “insurers [must] submit to binding arbitration of no-fault claims at the option of the insured. Such compelled submissions are classified as compulsory arbitrations . . . even if (as here), it is the assured who complains after exercising the option to pursue [his right to] arbitration instead of legal action. . .” (Matter of Shand [Aetna Ins. Co.], 74 AD2d at 446 [emphasis added]).

I interpret the Shand court as saying that even a claimant, who has the free election to choose to bring his claim in court or by arbitration, must receive the benefit of the higher standard of review which is accorded to those subjected to compulsory arbitration because he “is compelled by statute to submit to arbitration” (Matter of Shand [Aetna Ins. Co.], 74 AD2d at 446).

I submit this holding, within two consecutive paragraphs, is internally conflicting and does not comport with the holdings of the Court of Appeals.

In Matter of Furstenberg (Aetna Cas. & Sur. Co. – – Allstate Ins. Co.) (49 NY2d 757 [1980]), cited by the Shand court, the Court of Appeals clearly states that since “Aetna Casualty & Security Co. was obliged under the statute to accept the arbitral forum for the resolution of the claim against it, we agree that the standard for judicial review of the award is more exacting than in voluntary arbitration” (Matter of Furstenberg [Aetna Cas. & Sur. Co. – – Allstate Ins. Co.], 49 NY2d at 758 [emphasis added and citations omitted]). Indeed, this statement merely amplifies the standard presented by the Appellate Division, First Department, which opined (in the same case) that “[a]t least as to the insurance company, arbitration under the no-fault insurance law
is compulsory and not voluntary” (Matter of Furstenberg [Aetna Cas. & Sur. Co.], 67 AD2d 580, 583 [1979], revd 49 NY2d 757 [1980]).

I would only hope that the Appellate Division, if again confronted with this anomaly, would re-examine this issue and find that a claimant which voluntarily and freely elects to have its no-fault claim brought before an arbitrator is not deemed to be one which was subjected to compulsory arbitration.
Decision Date: March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 17, 2006. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature as defendant’s time to pay or deny the claim was tolled due to plaintiff’s failure to adequately respond to timely verification and follow-up verification requests. Plaintiff cross-moved for summary judgment. The court denied defendant’s motion and plaintiff’s cross motion. The instant appeal by defendant ensued.

Upon oral argument of this appeal on February 13, 2007, this court was informed that, by order dated July 31, 2007, the court below had granted a motion by defendant to reargue, and, upon reargument, had granted defendant’s motion for summary judgment dismissing the complaint. In light of the order dated July 31, 2007, the instant appeal has been rendered moot. Accordingly, the appeal is dismissed.

This court reminds the parties’ counsel and the bar in general of the affirmative obligation to immediately notify an appellate court when an underlying action has been settled or the appeal otherwise rendered moot (cf. Rules of App Div, 2d Dept [22 NYCRR] § 670.2 [g]).

Weston Patterson, J.P., Golia and Rios, JJ. [*2]
Decision Date: March 12, 2008