SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated November 24, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). The affidavit by plaintiff’s billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that the basis for defendant’s denials, i.e., that “written proof of claim was provided more than 45 days after the date these services were rendered” was “without merit as a matter of law.” Contrary to defendant’s contention, it is not the date of defendant’s receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff’s submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 [“the eligible injured person or that person’s assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered”]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).

As plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr., 78 AD3d 1168), the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant failed to do so, plaintiff should have been awarded summary judgment. Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 10, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 21, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment on its claim for $150 for services rendered on September 6, 2007. So much of the appeal as is from the portions of the order that denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s claim for $150 for services rendered on September 6, 2007 and granted the branch of plaintiff’s cross motion seeking summary judgment with respect to that claim is deemed from a judgment of the same court entered March 9, 2010 awarding plaintiff the principal sum of $150 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s cross motion seeking summary judgment with respect to plaintiff’s claim for $150 for services rendered on September 6, 2007 is vacated, and said branch of plaintiff’s cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for services rendered from October 5, 2007 through February 21, 2008 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment upon its claim for $150 for services rendered on September 6, 2007. A judgment was subsequently entered, from which the appeal, in part, is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, there is a triable issue of fact with respect to the timeliness of plaintiff’s submission of the claim seeking reimbursement in the sum of $150 for services rendered on September 6, 2007 (see Insurance Department Regulations [11 NYCRR] § 65-1.1; New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822 [2007]). Consequently, neither party was entitled to summary judgment on this claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

With respect to the remaining claims at issue, in support of its motion for summary judgment, defendant submitted, among other things, sworn and affirmed peer review reports, which set forth a factual basis and medical rationale for the opinions that there was a lack of medical necessity for the services set forth in these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff failed to rebut defendant’s prima facie showing of a lack of medical necessity.

In light of the foregoing and the Civil Court’s finding that defendant timely denied the claims, a finding which plaintiff does not dispute, the branches of defendant’s motion seeking summary judgment on the claims for services provided from October 5, 2007 through February 21, 2008 should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 10, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 4, 2012

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**35 Misc 3d at 51} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on condition that, within 60 days, defendant serve and file the moving affidavit of Marcy Gonzalez, accompanied by a certificate of conformity in compliance with CPLR 2309 (c).

Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant’s procedures for mailing EUO scheduling letters and denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to defendant’s motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant’s claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff’s remaining contentions lack merit.{**35 Misc 3d at 52} [*2]

Accordingly, the order conditionally granting defendant’s motion for summary judgment is affirmed.

We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.

Pesce, P.J., Weston and Rios, JJ., concur.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated April 1, 2010. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the District Court properly denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had not demonstrated their prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

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

LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: April 02, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated January 19, 2011. The order, insofar as appealed from, denied plaintiff’s motion 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, the District Court properly denied plaintiff’s motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

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

LaCava, J.P., Molia and Iannacci, JJ., concur. [*2]
Decision Date: April 02, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered October 14, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 14, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a hearing in accordance with the decision herein and a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant opposed plaintiff’s motion and cross-moved, based upon six “affirmed” peer [*2]review reports, for summary judgment dismissing the complaint on the ground of lack of medical necessity, for the supplies provided to plaintiff’s assignor. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from its attorney, who argued, among other things, that the doctor’s signatures on the peer review reports were stamped or electronically generated.

We find that defendant’s peer review reports, if admissible, are sufficient to demonstrate a lack of medical necessity, which showing plaintiff failed to rebut. However, plaintiff argued before the Civil Court, and again on appeal, that defendant’s peer review reports are not in admissible form because they impermissibly bear a stamped facsimile of the doctor’s signature. Such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motions for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the doctor’s signatures appearing on defendant’s peer review reports, which will determine whether the peer review reports were in admissible form (Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant rebutted plaintiff’s prima facie case and demonstrated defendant’s entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of defendant’s peer review reports and for a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

Pesce, P.J., Weston and Rios, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 29, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its unopposed motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). Here, plaintiff’s affidavit failed to state unequivocally that defendant’s denial of claim forms were either untimely or without merit as a matter of law.

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 02, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 8, 2010. 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 provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied; as so modified, 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 as denied its motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to specified discovery [*2]demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see 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, 11th & 13th Jud Dists 2011]).

As defendant’s discovery demands were served with defendant’s answer and plaintiff did not timely object to the discovery demands, 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 & 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 & 11th Jud Dists 2008]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a “staged accident” defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain “whether Plaintiff’s assignor received the DME [durable medical equipment] at issue.” Defendant’s DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: April 02, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 28, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 24, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., [*2]17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The appearance of a provider at a duly requested EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff does not claim to have responded in any way to the EUO request. Therefore, plaintiff’s objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, concur.
Decision Date: April 02, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend the answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

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 as granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend its answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in [*2]the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In addition, the Civil Court did not improvidently exercise its discretion in granting defendant’s application for leave to amend its answer in order to interpose the affirmative defense of fraudulent incorporation, in the absence of any showing that prejudice or surprise would result therefrom (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Tomasino v American Tobacco Co., 57 AD3d 652 [2008]; Mackenzie v Croce, 54 AD3d 825 [2008]), and since the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220 [2008]; Ingrami v Rovner, 45 AD3d 806 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432 [2007]).

Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant also established that special circumstances exist which warrant disclosure of plaintiff’s tax documents at issue (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [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 & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]).

In light of the foregoing, plaintiff’s remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 02, 2012