January 29, 2009
Lenox Neuropsychiatry Med., P.C. v State Farm Ins. Co. (2009 NY Slip Op 50178(U))
Reported in New York Official Reports at Lenox Neuropsychiatry Med., P.C. v State Farm Ins. Co. (2009 NY Slip Op 50178(U))
|Lenox Neuropsychiatry Med., P.C. v State Farm Ins. Co.
|2009 NY Slip Op 50178(U) [22 Misc 3d 1118(A)]
|Decided on January 29, 2009
|Civil Court Of The City Of New York, Richmond County
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
|As corrected in part through February 9, 2009; it will not be published in the printed Official Reports.
Civil Court of the City of New York, Richmond County
Lenox Neuropsychiatry Medical, P.C. a/a/o Leon Murray, Plaintiff,
State Farm Insurance Company, Defendant.
Katherine A. Levine, J.
This case raises again the issue of what type of evidence a defendant insurance company must present, in support of its claim that a medical service provider is fraudulently incorporated, to warrant an order from the court directing extensive discovery or EBT’s. .
Plaintiff Lenox Neuropsychiatry Medical (“Lenox” or “plaintiff”) commenced this action against defendant pursuant to Insurance Law § 5106 (a) to recover $ 3,888.79 in unpaid bills for acupuncture services rendered to its assignor Leon Murray (“Murray”). The defendant, State Farm Insurance Co., (“State Farm” or “defendant”) alleges that plaintiff is fraudulently incorporated in violation of 11 NYCRR § 65.3.16(a)(12) and moves to dismiss plaintiff’s complaint, with prejudice, for plaintiff’s failure to provide complete and meaningful responses to defendant’s discovery demands. In the alternative, defendant moves to compel plaintiff to fully comply with plaintiff’s discovery demands and to produce plaintiff’s purported owner, Dr. Azim Etemadi (“Etemadi”) for an EBT, pursuant to CPLR §3124. In support of its motion, defendant presents an affirmation from its attorney chronicling the web of fraud allegedly surrounding plaintiff and a number of other medical providers as well as an affidavit from one Dr. Ahmed Halima (“Halima”), a doctor who has worked for a number of medical providers, that purportedly implicates Etemadi in this fraudulent scheme.
Plaintiff opposes the motion, stating that defendant is not entitled to extensive discovery or to take an EBT since it has failed to provide any coherent evidence to support its allegation that plaintiff is fraudulently incorporated. Accordingly, plaintiff moves this court for a protective order pursuant to CPLR §3103(a).Plaintiff also alleges that the defendant’s motion is defective since it failed to annex a denial of claim to its motion.
Article 31 of the CPLR governs discovery actions and its disclosure provisions do not [*2]condition discovery upon a showing of “good cause.”The guiding principle behind Article 31 of the CPLR is 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. Cambridge Medical v. Nationwide Prop. & Cas. Ins. Co., 19 Misc 3d 1110A, 859 NYS2d 901(Civil Ct., Richmond Co. 2008), citing Carothers v. Insurance Companies et al, 13 Misc 3d 970, 973 (Civil Ct., Richmond Co. 2006). Although the bar against which to measure whether the defendant has shown that its discovery requests are warranted on the issue of fraudulent incorporation is quite low, Bay Plaza Chiropractic v. State Farm Mutual Automobile Ins. Co., 2008 NY Slip Op 51925U, 21 Misc 3d 1102A (Civil Ct., Richmond Co.2008), citing Carothers, supra , unsupported conclusions and “suspicions” as well as “unsubstantiated hypotheses and suppositions” are nevertheless insufficient to raise a triable issue of fact pertaining to the assignor’s alleged fraud. A.B. Medical Services PLLC v Eagle Ins. Co., 3 Misc 3d 8, 10 (App. Term, 2d Dept. 2003).
Insurers have the burden to come forward with proof in admissible form to establish the factual basis of their allegations. Mt. Sinai Hospital v Triboro Coach Inc., 263 AD2d 11, 20 (2d Dept 1999). In fact, in Mallela, the Court of Appeals specifically permitted insurers to “look beyond the face of licensing documents to identify willful and material failure to abide by state and local law,” State Farm Mutual Automobile Insurance Co., Appellant, v. Mallela et al., 4 NY3d 313, 321 [3d Dept 2005], in assessing whether to withhold reimbursement of no-fault claims to medical corporations they believe to be fraudulently incorporated. Id., see, One Beacon Ins. Co. v. Midland Medical Care, 54 AD3d 738, (2d Dept 2008).
In Bay Plaza v. State Farm, this court addressed the issue of what constitutes a sufficient showing for purposes of allowing defendant additional discovery into plaintiff’s matters to determine if it is fraudulently incorporated. There, the defendant submitted an affidavit from its Special Investigations Unit (“SIU”) investigator with personal knowledge of the investigation as well as other documentation which included clearly marked insurance claim forms evidencing duplicative claims and even of more importance, affirmation from defendant’s attorney, explaining the logical connection between the plaintiff and fraud. Accordingly, this court found that defendant has articulated a “founded belief” that plaintiff is actually controlled by a non-licensed professional and made allegations sufficient to raise an issue of fact as to whether plaintiff was fraudulently incorporated.
In contrast, here, the defendant has submitted unsubstantiated hypotheses and suppositions and has not articulated a founded belief that Lenox is fraudulently incorporated so as to warrant the extensive discovery it is seeking. Defendant attempts to question whether Dr. Etemadi is the true owner of Lenox by weaving an intricate pattern of alleged fraud premised upon the fact that defendant received bills from Dr. Etemadi for services he allegedly rendered while working at different medical providers. Since Lenox, as well as the other medical [*3]providers from whom Dr. Etemadi submitted. bills use the same billing companies, and since two of these billing companies have the same address and phone numbers,” a hallmark of improperly owned PCs” is present (affirmation of Joseph A. Schwarzenberg , Esq, “attorney’s affirmation, ¶¶ 7-9 ). Defendant then asserts that Dr. Etemadi also renders services for another entity, “Livingston Medical,” which along with its purported owner have been implicated in “doc in the box activity” (attorney affirmation, ¶13, 14) because the U.S. Attorney indicted an attorney who was associated with Livingston and other medical clinics, with “participating in a conspiracy to commit health care and insurance fraud related to automobile accidents “(attorney affirmation, ¶¶ 13-16). However, even this assertion does not implicate Livingston per se much less Lenox or Dr. Etemadi.
Finally, defendant refers to an affidavit of Dr. Halima that has no caption or index number, and is dated 2006, which laboriously details clinics which are purportedly owned and controlled by individuals who are not doctors. It is salient to note that Dr. Halima never implicates Lenox is this scheme and only refers to once to a Dr. Atamedi, which defendant’s attorney argues in reality is Etemadi. Defendant also attempts to implicate Etemadi because one medical facility he worked for lists a service of process contact name that sounds similar to a name of individual Halima claims is implicated in fraud.
The court finds this alleged web of fraud to be beyond the six degrees of separation that could conceivably connect these various medical providers to one another [FN1].The court first takes issue with defendant’s claim that Dr. Etemadi is synonymous with the Dr. Atamedi mentioned in Halima’s affidavit. Furthermore, the court can give little credence to Dr. Halima’s affidavit since it apparently was borrowed from some unknown and unrelated case and does not even mention Lenox Neuropsychiatry! Second, while defendant has made a valiant attempt to implicate Lenox and Neuropsychiatry with numerous billing companies and one other medical provider which somehow may be implicated in a fraudulent scheme by virtue of the acts of an attorney, there simply is no direct or indirect connection between Lenox or Etemadi and actual or attempted fraud.
Given the above, this court does not find defendant has articulated a “founded belief” that plaintiff is actually controlled by a non-licensed professional so as to warrant a broad based trial on fraud or to warrant extensive discovery on fraudulent incorporation. In fact, defendant’s attempts to link plaintiff to fraudulent incorporation are too convoluted as to even provide guidance as to what reasonable discovery would be warranted. However, although not specifically articulated by defendant, this court is curious as to why Dr. Etemadi would render services for a number of medical clinics if he is in fact the owner of Lenox, which would [*4]theoretically require him to devote his time and energy to overseeing the operation of Lenox. As such, this court finds that it is material and necessary for defendant to conduct a limited EBT of Etemadi to ascertain the extent of his work with clinics separate and apart of Lenox, whether any of these clinics have actually been found by a court to have been fraudulently incorporated, and the extent of his knowledge as to the actual operations of these other clinics.
In light of the above, the motion is denied except for the limited EBT that will be allowed of Dr. Etemadi. The court directs defendant to notice Etemadi for an EBT within the next twenty days of receipt of this decision and that the EBT be conducted within the next 45 days.
The foregoing constitutes the decision and order of the court.
Dated:January 29, 2009
Staten Island, NYHON. KATHERINE A. LEVINE
Judge, Civil Court
ASN by ________ on ____________.
Footnote 1:Six degrees of separation is the theory that anyone on the planet can be connected to each other through a chain of acquaintances that has no more than five intermediaries. The theory was first proposed in 1929 by the Hungarian writer Frigyes Karinthy in a short story called “Chains”.