July 6, 2018

Parisien v 21st Century Ins. Co. (2018 NY Slip Op 51081(U))

https://www.beynensonlaw.com/case-law/parisien-v-21st-century-ins-co-2018-ny-slip-op-51081u/

Court: Appellate Term, Second Department
Decided: July 6, 2018
Citation: 2018 NY Slip Op 51081(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Discovery and procedure Fraudulent incorporation (Mallela) Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Mallela defense: preclusion and discovery (see the maps)

Cite as

Parisien v 21st Century Ins. Co., 2018 NY Slip Op 51081(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

A provider that fails to timely object to discovery must produce the information unless it is privileged or palpably improper. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and compelling specified business records and a deposition. The provider had not timely challenged the demands under CPLR 3122 (a) or shown privilege or palpable impropriety. The insurer's licensing-eligibility defense under 11 NYCRR 65-3.16 (a) (12) and Mallela was not precludable, and a deposition was available under CPLR 3101 (a). Summary judgment was denied because the provider failed to establish untimely denials or timely denials that were conclusory, vague or legally meritless.

Reported in New York Official Reports at Parisien v 21st Century Ins. Co. (2018 NY Slip Op 51081(U))

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

Jules Francois Parisien, M.D., as Assignee of Charles, Beverly, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered August 28, 2015. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment, and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to respond to certain of defendant’s discovery demands and to produce plaintiff for an examination before trial.

ORDERED that the order, insofar as appealed from, 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 denied plaintiff’s motion for summary judgment, and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of compelling plaintiff to provide defendant with “management agreements to the extent available, W-2 forms, business-related bank records, and lease agreements,” and to produce plaintiff for an examination before trial.

Plaintiff’s motion for summary judgment was properly denied, since the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see [*2]Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff argues that defendant is not entitled to the discovery ordered by the Civil Court. However, as plaintiff failed to timely challenge the propriety of the discovery demands (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are palpably improper and may not be discoverable, the defense at issue in this case—that plaintiff is not entitled to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12) due to its failure to meet licensing requirements (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005])—is not precludable (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2017]). Plaintiff has not demonstrated that the items at issue are privileged or palpably improper. In addition, defendant is entitled to an examination before trial of plaintiff (see CPLR 3101 [a]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

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

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 06, 2018

Legal questions (2)

Questions 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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to show the claims had not been timely denied or that the timely denials were conclusory, vague or without merit, so summary judgment was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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)

Held that discovery of management agreements, W-2s, bank records, leases and the provider's deposition was proper because the licensing-ineligibility defense is not precludable and the provider had not timely objected to the demands.

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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Midborough Acupuncture, P.C. v State Farm Ins. Co. (2008 NY Slip Op 28291)The insurer established grounds for discovery concerning the provider's possible fraudulent incorporation, including corporate tax information.
State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416)Fraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 02785) FollowedAn insurer's fraudulent incorporation defense is not precluded by failure to raise it in a timely denial.
Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co. (2008 NY Slip Op 52468(U))The insurer established grounds for corporate eligibility discovery, but failed to justify disclosure of the provider owner's personal tax returns.
Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51529(U))The insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns.

Similar decisions

Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.
Parisien v Travelers Ins. Co. (2019 NY Slip Op 51162(U))The insurer established that five causes of action were premature because timely requested verification remained outstanding.
Parisien v Tri State Consumers Ins. Co. (2021 NY Slip Op 50728(U))The insurer's unrebutted IME report established a lack of medical necessity for the provider's subsequent services.
Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))The insurer proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial.
Parisien v Maya Assur. Co. (2018 NY Slip Op 50766(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.