Opinion
No. BAC4407–11.
2012-06-5
PARK AVENUE MEDICAL CARE, P.C. a/a/o Mamady Conde, Plaintiff v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant.
Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, for Plaintiff. Short & Billy, P.C., for Defendant.
Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, for Plaintiff. Short & Billy, P.C., for Defendant.
DAVID A. MORRIS, J.
Upon the following papers numbered 1 to 8 read on the motion by defendant to strike the notice of trial and to compel discovery;and the cross-motion by plaintiff for a protective order Notice of Motion and supporting papers 1, 2 Notice of Cross Motion and supporting papers 4, 5 Answering Affidavits and supporting papers 7 Replying Affidavits and supporting papersFiled papers; Other Exhibits 3; 6; 8 (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this motion by the defendant to strike the notice of trial (22 NYCRR § 212.17(c)) and to compel discovery (CPLR § 3124) is granted. The plaintiff's cross-motion for a protective order (CPLR § 3103) is denied. The defendant has been served with a notice of trial although court records do not reflect the filing of a notice of trial with the clerk of the court. In the event that a notice of trial has in fact been filed with the court it will be deemed stricken as the motion is timely (22 NYCRR § 212.17(c)) and the matter is not ready for trial as pre-trial disclosure has not been completed. In this regard the defendant's motion papers include copies of various demands for disclosure, together with affidavits of service, to which the plaintiff has not responded. The plaintiff has not timely challenged the propriety of the demands for disclosure (see CPLR § 3120 and § 3122). In the absence of a timely objection the plaintiff is obligated to produce the information requested except as to matters which are palpably improper or privileged (Radiology Today, P.C. v. GEICO General Ins. Co., 32 Misc.3d 4). It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault medical benefits and such defense is non-waivable and may be asserted at any time (State Farm Mutual Auto Ins. Co. v. Mallela, 4 NY3d 313;Midwood Acupuncture, P.C. v. State Farm Mutual Auto Ins. Co., 14 Misc.3d 131(A)). The failure to state such a defense with particularity in the answer does not preclude the defendant from seeking pre-trial disclosure related thereto ( Medical Polis, P.C. v. Progressive Ins. Co., 35 Misc.3d 139(A); Lexington Acupuncture, P.C. v. General Assurance Co., 35 Misc.3d 42). The defendant has put forth sufficient factual allegations, such as the federal indictment of plaintiff's principle owner concerning fraudulent medical clinics, warranting such manner of disclosure herein. The defendant is not required to demonstrate good cause for such disclosure as it is material and necessary to its defense (One Beacon Ins. Group v. Midland Med. Care, P.C., 54 AD3d 738). In light of the foregoing the defendant is entitled to an examination before trial of plaintiff's principle owner (see Medical Polis, P.C. v. Progressive Ins. Co., supra; New Era Acupuncture, P.C. v. State Farm, 24 Misc.3d 134).
Accordingly, the plaintiff is hereby directed to serve full and complete responses to all of the defendant's demands for disclosure within thirty (30) days from the date of mailing of this order by the court. The plaintiff shall produce its principle owner for an examination before trial within thirty (30) days after serving responses to the demands for disclosure at a time, date and place mutually convenient to the parties.