Opinion
No. 570490/11.
2012-08-30
TRIANGLE R. INC., a/a/o Yanitza Coreas, Plaintiff–Appellant, v. PROGRESSIVE INSURANCE COMPANY, Defendant–Respondent.
Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 28, 2011, as denied its cross motion for a protective order and granted defendant's motion to compel plaintiff to produce its principal for deposition.
Present: LOWE, III, P.J., SCHOENFELD, HUNTER, JR., JJ.
PER CURIAM.
Order (Fernando Tapia, J.), entered February 28, 2011, insofar as appealed from, reversed, with $10 costs, defendant's motion to compel plaintiff to produce its principal for deposition denied and plaintiff's cross motion for a protective order granted.
The defendant-insurer's notice of deposition-pertaining to its defense of provider fraud based on fraudulent billing practices-was palpably improper ( see Dhue v. Midence, 1 AD3d 279 [2003] ), since defendant is precluded from raising this defense due to its failure to timely deny plaintiff's no-fault first-party claim within the 30–day statutory period ( see Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 565 [2008] ). This is so irrespective of defendant's claim that the fraudulent billing was part of a widespread scheme to defraud insurers (see Fair Price Med. Supply Corp. v. Travelers Indem. Co., 42 AD3d 277, 285 [2007],affd10 NY3d 556 [2008] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.