Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co. (2011 NY Slip Op 52362(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 3, 2009. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a notice of trial and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands to the extent of directing plaintiff to provide specified documents.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branch of defendant’s motion seeking to vacate a notice of trial and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands to the extent of directing plaintiff to provide “corporate tax returns for 2002, 2003 and 2004 as well as the lease agreement where services were allegedly provided and any management agreements as well as 1099’s, W2s and [*2]K1s for payment to Vladimir Grinberg.”

In January 2007, defendant served plaintiff with a demand for verified interrogatories, a notice for discovery and inspection, and a notice for an examination before trial of all adverse parties. None of these discovery demands sought production of documents pertaining to a defense that plaintiff is ineligible to recover no-fault benefits because plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (State Farm Mut. Auto. Ins. Co. v Malella, 4 NY3d 313 [2005]). In December 2008, plaintiff filed a notice of trial and certificate of readiness. Defendant timely moved for, among other things, vacatur of the notice of trial and summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to respond to its discovery demands. Annexed to defendant’s motion papers were supplemental combined demands seeking, among other things, management and lease agreements, corporate tax records, as well as “W2’s and/or any other documentation to establish that each person who provided services claimed by plaintiff for the subject assignor(s) is an actual employee of plaintiff.”

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Although defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover no-fault benefits because plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws, a defense which is not precluded (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]), defendant’s original discovery demands did not seek production of documents pertaining to such a defense. Consequently, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands was premature and should not have been granted (see CPLR 3120 [2]; 3124), as plaintiff had not had an opportunity to respond to the supplemental demands (see Jones v LeFrance Leasing L.P., 81 AD3d 900 [2011]). Plaintiff’s remaining contentions either lack merit or are not properly before the court as they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands is denied as premature.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011