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December 23, 2011

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

https://www.beynensonlaw.com/case-law/allstate-social-work-psychological-svcs-pllc-v-auto-one-ins-co-2011-nyslip-op-52362u/

Court
Appellate Term, Second Department
Decided
December 23, 2011
Citation
2011 NY Slip Op 52362(U) · 34 Misc 3d 132(A)
Posture
Other motion
Outcome
Split result
Issues
Discovery and procedure Fraudulent incorporation (Mallela)
Legal questions
Mallela defense: preclusion and discovery (see the maps)
Cite as
Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co., 34 Misc 3d 132(A), 2011 NY Slip Op 52362(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

The insurer's motion to compel supplemental discovery was premature because the provider had no opportunity to respond to the new demands. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny that branch of the motion, while affirming vacatur of the notice of trial. The certificate of readiness incorrectly stated that discovery was complete. Although the insurer gave detailed reasons to question the provider's licensing eligibility, its original demands did not seek documents concerning that defense. Supplemental demands for corporate, management, lease, and employment records were first annexed to the motion. Under CPLR 3120 (2) and 3124, compelling responses at that point was premature.

Reported in New York Official Reports at Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co. (2011 NY Slip Op 52362(U))

[*1]
Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co.
2011 NY Slip Op 52362(U) [34 Misc 3d 132(A)]
Decided on December 23, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-568 K C.
Allstate Social Work & Psychological Svcs., PLLC as Assignee of YURIY DOMATOV, Appellant,

against

Auto One Ins. Co., Respondent.

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

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.

Mallela defense: preclusion and discovery

Open the full map

May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?

This decision: Insurer may raise or investigate the Mallela defense here (rules on the question, but another ground decided the case)

Recognized the insurer's detailed reasons for a non-precludable licensing-ineligibility defense, but denied the motion to compel supplemental demands as premature because the provider had not yet had a chance to respond.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 72
  • Trial courtsTrial 56
2005, Court of Appeals: 1 decision (1 Defense may be pursued)2021, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Division: 2 decisions (1 Defense may be pursued, 1 Defense barred)2017, Appellate Division: 1 decision (1 Defense may be pursued)2016, Appellate Division: 1 decision (1 Defense may be pursued)2011, Appellate Division: 1 decision (1 Defense may be pursued)2008, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Term: 1 decision (1 Defense may be pursued)2018, Appellate Term: 2 decisions (2 Defense may be pursued)2017, Appellate Term: 2 decisions (2 Defense may be pursued)2014, Appellate Term: 2 decisions (2 Defense may be pursued)2013, Appellate Term: 5 decisions (5 Defense may be pursued)2012, Appellate Term: 8 decisions (8 Defense may be pursued)2011, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2010, Appellate Term: 9 decisions (7 Defense may be pursued, 2 Defense barred)2009, Appellate Term: 7 decisions (7 Defense may be pursued)2008, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2007, Appellate Term: 7 decisions (7 Defense may be pursued)2006, Appellate Term: 6 decisions (6 Defense may be pursued)2025, Appellate Term: 7 decisions (7 Defense may be pursued)2023, Trial courts: 2 decisions (2 Defense may be pursued)2021, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2019, Trial courts: 1 decision (1 Defense may be pursued)2017, Trial courts: 4 decisions (2 Defense may be pursued, 2 Defense barred)2015, Trial courts: 3 decisions (3 Defense may be pursued)2013, Trial courts: 2 decisions (1 Defense may be pursued, 1 Defense barred)2012, Trial courts: 6 decisions (1 Defense may be pursued, 5 Defense barred)2011, Trial courts: 1 decision (1 Defense barred)2010, Trial courts: 3 decisions (3 Defense barred)2009, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2008, Trial courts: 6 decisions (5 Defense may be pursued, 1 Defense barred)2007, Trial courts: 2 decisions (2 Defense may be pursued)2006, Trial courts: 5 decisions (5 Defense may be pursued)2005, Trial courts: 9 decisions (5 Defense may be pursued, 4 Defense barred)2025, Trial courts: 2 decisions (2 Defense may be pursued)2026, Trial courts: 2 decisions (2 Defense may be pursued)This decision
20052010201520202025
Defense may be pursuedDefense barredThis decisionCites it or cited by itCited or followed

Of the 136 decisions on this question in the Second Department courts and the Court of Appeals, 112 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
  • Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co. (2011 NY Slip Op 51308(U)) FollowedThe provider's summary judgment cross motion was premature because discovery remained outstanding.
  • Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co. (2010 NY Slip Op 52162(U)) FollowedA provider that fails to timely challenge discovery demands must respond, except as to privileged or palpably improper matters.
  • Multiquest, P.L.L.C. v Allstate Ins. Co. (2007 NY Slip Op 27366) FollowedA professional service limited liability company is ineligible for no-fault reimbursement if it violates licensing requirements.

Similar decisions

  • Allstate Social Work & Psychological Servs., P.L.L.C. v Autoone Ins. Co. (2011 NY Slip Op 52295(U))A provider that fails to timely challenge discovery demands must respond except as to privileged or palpably improper matters.
  • 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.
  • 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.
  • Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2012 NY Slip Op 50152(U))The insurer's specific reasons to question the provider's licensing compliance supported discovery of its financial and tax records.
  • VE Med. Care, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50571(U))The insurer established grounds to amend its answer to assert fraudulent incorporation and obtain the provider's tax documents.
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