S & B Neurocare, P.C. v GEICO Ins. Co. (2008 NY Slip Op 51450(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 23, 2007. The order denied defendant’s motion to consolidate this action with 11 other actions and, upon consolidation, for summary judgment dismissing the action, or, in the alternative, discovery in the consolidated action.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate this action with 11 other pending actions commenced by the same provider against defendant. Upon consolidation, defendant further sought summary judgment dismissing each of the complaints on the ground that the provider is ineligible for reimbursement of no-fault benefits because at the time that the services for which plaintiff seeks reimbursement were rendered, plaintiff was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). In the alternative, defendant sought discovery related to the foregoing defense. The court denied defendant’s motion in its entirety, and this appeal by defendant ensued.

The branch of defendant’s motion seeking consolidation was properly denied. Defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]).

Similarly, to the extent that defendant’s motion seeks summary judgment dismissing the complaint in the instant action, the court properly denied the relief requested. To establish its entitlement to summary judgment, defendant was required to present sufficient evidence in admissible form to show, as a matter of law, that there was an absence of a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendant’s [*2]proffered defense, that plaintiff is ineligible for reimbursement of no-fault benefits under Insurance Department Regulations [11 NYCRR] § 65-3.16 (a) (12) because its owner is not properly licensed as a medical doctor in New York (see Business Corporation Law §§ 1507, 1508), has not been established as a matter of law (see CPLR 4540; see also Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]; see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra). To the extent defendant sought, in the alternative, an order compelling plaintiff to provide discovery, the lower court properly denied that branch of defendant’s motion. Defendant failed to submit an affidavit specifying any facts entitling it to pretrial proceedings almost a year after the notice of trial was filed (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]).

Rios and Steinhardt, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views
Decision Date: July 8, 2008.