September 14, 2007

PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))

https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-state-farm-mut-ins-co-2007-ny-slip-op-51757u/

Court: Appellate Term, Second Department
Decided: September 14, 2007
Citation: 2007 NY Slip Op 51757(U) · 16 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Discovery and procedure Fraudulent incorporation (Mallela) Defaults and vacatur
Legal questions: Mallela defense: preclusion and discovery (see the maps)

Cite as

PDG Psychological, P.C. v State Farm Mut. Ins. Co., 16 Misc 3d 138(A), 2007 NY Slip Op 51757(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 unrefuted need for discovery on licensing defeated the provider's summary judgment motion. The insurer asserted potential reimbursement ineligibility under 11 NYCRR 65-3.16 (a) (12) and Mallela, explaining that the provider's failure to supply discovery prevented it from establishing the defense. The provider did not refute that argument in reply. Applying CPLR 3212 (f), the Appellate Term, Second Department, affirmed denial of summary judgment and declined to review the unchallenged prima facie showing. It dismissed the appeal from the disclosure order because the provider had not opposed the insurer's cross motion in writing; that portion was entered on default and was not appealable under CPLR 5511.

Reported in New York Official Reports at PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))

[*1]

PDG Psychological, P.C. v State Farm Mut. Ins. Co.

2007 NY Slip Op 51757(U) [16 Misc 3d 138(A)]

Decided on September 14, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through September 18, 2007; it will not be published in the printed Official Reports.

Decided on September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-955 Q C.

PDG PSYCHOLOGICAL, P.C. a/a/o GAVIN JORDAN, Appellant,
against
STATE FARM MUTUAL INSURANCE CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 28, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Appeal from so much of the order as granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to, inter alia, strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide discovery. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce plaintiff’s principal for an examination before trial. The instant appeal by plaintiff ensued.

We do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff’s motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff’s motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant’s argument. Consequently, the branch of the order which denied plaintiff’s [*3]
motion for summary judgment is affirmed (see id.; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

Moreover, since plaintiff failed to submit written opposition to defendant’s cross motion to compel disclosure, that branch of the order which granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce Philip D. Goldstein for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion to compel disclosure is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

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

Held the provider's summary judgment motion properly denied because the insurer asserted the provider may be improperly licensed and the facts needed to establish that defense were in the provider's possession and undisclosed.

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

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).
Midborough Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 26360)An insurer's fraudulent-incorporation defense survives an untimely denial, and discovery into provider ownership and licensing is material.

Similar decisions

PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U))A provider may rely on denial forms annexed to an insurer's motion to establish the insurer's receipt of the claims.
PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U))The provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof.
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.
Bedford Park Med. Practice, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50494(U))A provider cannot cure deficient summary judgment proof by first supplying admissible evidence in reply papers.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2012 NY Slip Op 51775(U))The insurer substantiated its fraudulent-incorporation allegations sufficiently to warrant disclosure and defeat summary judgment.