August 10, 2006
Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51553(U))
https://www.beynensonlaw.com/case-law/pueblo-med-treatment-p-c-v-state-farm-mut-ins-co-2006-ny-slip-op-51553u/
- Decided
- August 10, 2006
- Citation
- 2006 NY Slip Op 51553(U) · 12 Misc 3d 147(A)
- Posture
- Summary judgment
- Outcome
- Split result
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.
Reported in New York Official Reports at Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51553(U))
| Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. |
| 2006 NY Slip Op 51553(U) [12 Misc 3d 147(A)] |
| Decided on August 10, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through September 1, 2015; it will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: DAVIS, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570085/06.
against
State Farm Mutual Automobile Insurance Company, Defendant-Appellant.
Defendant appeals from so much of an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered September 28, 2005, as denied its cross motion for summary judgment dismissing the complaint, or, in the alternative, to compel discovery.
PER CURIAM:
Order (Eileen A. Rakower, J.), entered September 28, 2005, modified (1) to dismiss the third and fourth causes of action pertaining to assignor Ramon Albino, and (2) to direct plaintiff to provide verified responses to questions 6-9, and 23 of the interrogatories, to respond to items 4-6, 8-9, 16, and 29-30 of defendant’s demand for discovery and inspection, and to comply with defendant’s notice of examination before trial requesting the deposition of Dr. Rafael; as so modified, affirmed, with $10 costs.
Defendant’s cross motion for summary judgment should have been granted to the extent of dismissing the third and fourth causes of action seeking no-fault benefits in the sum of $2,016.27 as to assignor Ramon Albino. It is undisputed on this record that the no-fault claims with respect to Albino were submitted to arbitration prior to the commencement of the action herein. By electing to arbitrate, plaintiff waived its right to commence an action to litigate any no-fault claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]).
Civil Court properly denied that branch of defendant’s cross motion which sought dismissal of the causes of action pertaining to assignors Odilis Garcia and Gilberto Hernandez. Defendant waived the affirmative defense of a “prior action pending” with regard to assignor Garcia by failing to raise the defense in its answer or in a pre-answer motion to dismiss (see CPLR 3211 (e); Charlton v United States Fire Ins. Co., 223 AD2d 404 [1996]). While defendant’s documentary submissions are sufficient to raise issues of fact with respect to its defenses that plaintiff is a fraudulently licensed corporation and that the medical services were provided by an independent contractor, they are insufficient to warrant judgment as a matter of law on these issues. [*2]
Defendant is entitled to discovery insofar as relevant to the foregoing defenses, as above indicated. This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: August 10, 2006
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.
On the merits, when may a no-fault insurer withhold payment because unlicensed persons own or control the provider (Mallela)?
This decision: Evidence of unlicensed ownership/control enough to proceed, but not resolved (rules on the question, but another ground decided the case)
Held the insurer's documentary submissions raised issues of fact on whether the provider was a fraudulently licensed corporation but were insufficient for judgment as a matter of law, and allowed related discovery.
Of the 17 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category.
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 the insurer entitled to discovery relevant to its fraudulent-licensing and independent-contractor defenses, directing the provider to answer specified interrogatories and document demands and to produce its physician for deposition.
Of the 24 decisions on this question in the First Department courts and the Court of Appeals, 17 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Cortez v Countrywide Ins. Co. (2005 NY Slip Op 02994) FollowedA claimant who elects arbitration waives the right to litigate later no-fault disputes arising from the same accident.
Similar decisions
- PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))The insurer's unrefuted need for discovery on licensing defeated the provider's summary judgment motion.
- V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 50304(U))The provider's summary judgment motion was denied because the insurer's investigator affidavit raised a triable coverage issue.
- A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U))The providers' ambiguous billing affidavit failed to establish a prima facie case, but the insurer also failed to obtain dismissal.
- GPM Chiropractic, P.C. v State Farm Mut. Ins. Co (2005 NYSlipOp 50861(U))The insurer's investigator affidavit raised a triable staged-collision coverage issue despite an untimely denial.
- Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. (2005 NYSlipOp 50826(U))The insurer's late denial waived medical necessity and assignment defenses, and its coverage opposition raised no factual issue.