September 6, 2012
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2012 NY Slip Op 51775(U))
https://www.beynensonlaw.com/case-law/all-boro-psychological-servs-p-c-v-allstate-ins-co-2012-ny-slip-op51775u/
- Decided
- September 6, 2012
- Citation
- 2012 NY Slip Op 51775(U) · 36 Misc 3d 157(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2012 NY Slip Op 51775(U))
| All Boro Psychological Servs., P.C. v Allstate Ins. Co. |
| 2012 NY Slip Op 51775(U) [36 Misc 3d 157(A)] |
| Decided on September 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-369 K C.
against
Allstate Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 7, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124. Contrary to plaintiff’s argument on appeal, defendant properly substantiated its allegations of fraudulent incorporation so as to warrant disclosure (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to compel disclosure. Plaintiff’s remaining contentions on appeal lack merit. [*2]
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 06, 2012
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?
This decision: Insurer may raise or investigate the Mallela defense here
Held the insurer properly substantiated its fraudulent incorporation allegations to warrant disclosure, so compelling discovery and denying the provider's summary judgment motion was not an improvident exercise of discretion.
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
- State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416)Fraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
- Lexington Acupuncture, P.C. v General Assur. Co. (2012 NY Slip Op 22047)An insurer may obtain Mallela discovery on sufficient allegations of fraudulent incorporation despite not pleading that defense.
Cited by
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51124(U))The insurer's SIU file was discoverable because it failed to show that the investigation began after a decision to deny the claims.
Similar decisions
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- All Boro Psychological Services, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50777(U))A provider that misses discovery objection deadlines must respond except as to privileged or palpably improper demands.
- All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))The insurer's unrefuted need for discovery on licensing defeated the provider's summary judgment motion.
- Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51704(U))The insurer established timely mailing of its denial and lack of medical necessity through an unrebutted sworn peer review report.