May 11, 2012

Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U))

Headnote

The court considered whether the defendant, Progressive Ins. Co., was entitled to seek discovery related to certain defenses, including the defense that the plaintiff, Medical Polis, P.C., was ineligible to recover no-fault benefits due to non-compliance with state or local licensing requirements. The main issue decided was whether the defendant could compel disclosure and examination before trial of the plaintiff's owner, Nikolai Lagoduke, based on the defense raised. The court held that the defendant was not precluded from seeking discovery related to the defense, even though it had not asserted the defense in its answer. As a result, the court affirmed the order of the Civil Court that granted the defendant's motion to compel disclosure and to produce the plaintiff's owner for examination before trial, and denied the plaintiff's cross motion for a protective order and summary judgment.

Reported in New York Official Reports at Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U))

Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U)) [*1]

Medical Polis, P.C. v Progressive Ins. Co.

2012 NY Slip Op 50864(U) [35 Misc 3d 139(A)]

Decided on May 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1684 Q C.

Medical Polis, P.C. as Assignee of VERONICA RICHARDSON, Appellant, —
against
Progressive Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 10, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.

ORDERED that 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 of the Civil Court as granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.

Notwithstanding defendant’s failure to assert in its answer a defense pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), it was not precluded from seeking discovery related to that defense, since defendant made sufficient allegations in its moving papers that plaintiff, a professional service corporation, is ineligible to recover no-fault benefits because it fails to comply with applicable state or local licensing requirements (Lexington Acupuncture, P.C. v General Assur. Co., ___ Misc 3d ___, 2012 NY Slip Op 22047 [App Term, 2d, 11th & [*2]13th Jud Dists 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial. In light of the foregoing, the court properly denied plaintiff’s cross motion for a protective order and summary judgment (see CPLR 3212 [f]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012