October 15, 2013

Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51745(U))

https://www.beynensonlaw.com/case-law/jamaica-dedicated-med-care-p-c-v-allstate-ins-co-2013-ny-slip-op51745u/

Court: Appellate Term, Second Department
Decided: October 15, 2013
Citation: 2013 NY Slip Op 51745(U) · 41 Misc 3d 131(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure Fraudulent incorporation (Mallela)
Legal questions: Mallela defense: preclusion and discovery (see the maps)

Cite as

Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co., 41 Misc 3d 131(A), 2013 NY Slip Op 51745(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 justified discovery on provider licensing eligibility, and the provider's certificate of readiness incorrectly stated discovery was complete. The insurer sought to vacate the notice of trial, compel complete discovery responses, and depose the provider's owner. Its outstanding demands addressed whether the professional service corporation complied with state or local licensing laws and was eligible for reimbursement under Mallela. That defense was not precluded, and the insurer gave specific, detailed reasons for the requested discovery. Under CPLR 3101 (a), the Civil Court properly required the responses and owner's deposition and vacated the notice of trial. The Appellate Term, Second Department, affirmed the order in favor of the insurer.

Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51745(U))

[*1]

Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co.

2013 NY Slip Op 51745(U) [41 Misc 3d 131(A)]

Decided on October 15, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2346 K C.

Jamaica Dedicated Medical Care, P.C. as Assignee of KEITH GRAHAM, Appellant, —
against
ALLSTATE INS. CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patricia Anne Williams, J.), entered July 8, 2011. The order granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion to vacate the notice of trial, to compel plaintiff to provide complete responses to defendant’s discovery demands, and to produce plaintiff’s owner, Viviane Etienne, M.D., for an examination before trial.

Defendant established that the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. Moreover, defendant’s outstanding discovery demands seek to ascertain whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and in light of the fact that defendant set forth specific and detailed reasons for seeking the discovery at issue, the Civil Court properly granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; see also Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139[A], 2011 NY Slip Op 51551[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff’s remaining contention lacks merit, the order is affirmed (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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 2013

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)

Upheld vacating the notice of trial and compelling discovery and the owner's deposition on the licensing-ineligibility defense, which was not precluded, because the insurer gave specific and detailed reasons for the discovery.

Defense may be pursuedDefense barredThis decisionCites it or cited by itCited or followed

Of the 134 decisions on this question in the Second Department courts and the Court of Appeals, 111 (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).
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.
One Beacon Ins. Group, LLC v Midland Med. Care, P.C. (2008 NY Slip Op 06813)The insurers raised a triable issue of fraudulent incorporation despite evidence of physician ownership and oversight of the provider.
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51551(U))The insurer justified financial and tax discovery on provider eligibility, but the provider's remaining discovery responses were sufficient.
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.

Similar decisions

Jamaica Dedicated Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51493(U))The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied.
Jamhil Med., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51028(U))The provider's refusal to comply with court-ordered discovery without a reasonable excuse warranted dismissal under CPLR 3126.
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.
Jamaica Dedicated Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50752(U))The insurer's affidavit omitted claims in the complaint and failed to substantiate its fee-schedule defense, defeating summary judgment.
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.