New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 2, 2012
VE MEDICAL CARE, P.C. AS ASSIGNEE OF FELIPE DOMINGUEZ,
AUTO ONE INS. CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 2, 2009.
VE Med. Care, P.C. v Auto One Ins. Co.
Decided on April 2, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
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 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 ; Tomasino v American Tobacco Co., 57 AD3d 652
; Mackenzie v Croce, 54 AD3d 825 ), 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 ; Ingrami v Rovner, 45 AD3d 806 ; Hill v 2016
Realty Assoc., 42 AD3d 432 ).
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] ; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 ). 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 ; 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 ; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 ; Altidor v State-Wide Ins. Co., 22 AD3d 435 ).
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
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