Multiquest, P.L.L.C. v Allstate Ins. Co., 2007 NYSlipOp 27366, Appellate Term 2d.
In this action by a provider to recover first-party no-fault benefits for an August 17, 1999 psychological evaluation of its assignor, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment arguing, inter alia, that plaintiff was ineligible to receive reimbursement of no-fault benefits because plaintiff was fraudulently incorporated, relying on State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). Finding, inter alia, that the defense of “improper incorporation” was waived because defendant failed to assert the defense in its denial of claim form or in its answer, the court below awarded plaintiff summary judgment.
Although Mallela involved a provider which was a professional service corporation (see Business Corporation Law art 15) and the instant plaintiff is a professional service limited liability company (see Limited Liability Company Law art 12), the requirements of membership, professional licensing, and filing are substantially the same. As a result, 11 NYCRR 65-3.16 (a) (12) clearly applies to professional service limited liability companies. Limited Liability Company Law ยง 1203 (b) requires that a member of such a company be licensed for any professional services the company is organized to provide. There is no dispute that plaintiff’s articles of organization stated that the company was to provide, inter alia, psychological services and listed a licensed psychologist as the provider of those services. However, the named psychologist testified under oath that she was never an owner or member of plaintiff and that she never received a stock certificate or any compensation based on an ownership interest. Defendant also proved that plaintiff’s ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist, and no other, continued to be listed as a member and manager of plaintiff. Not only was the foregoing sufficient to defeat plaintiff’s motion for summary judgment, it also satisfied defendant’s burden of proof on its cross motion for summary judgment by demonstrating that plaintiff performed psychological services in violation of Limited Liability Company Law sections 1203 and 1207.
Plaintiff did not dispute this proof, but sought to excuse any violation of the statute by proffering a hearsay affidavit of a person who purported to relate the non-fraudulent intentions of [*3]plaintiff’s original owner. Even if the affidavit presented a reasonable excuse for the failure to obtain an affidavit from plaintiff’s original owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]; cf. Oddo v Edo Mar. Air, 34 AD3d 774 [2006]), it failed to excuse the initial fraudulent act of listing the psychologist as a member and manager of plaintiff or plaintiff’s continuing to so list the psychologist through successive changes of ownership including the period when the herein services were provided. Consequently, defendant was entitled to summary judgment upon its cross motion (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, supra; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, supra).
Multiquest, P.L.L.C. v Allstate Ins. Co., 2007 NYSlipOp 51735(U), Appellate Term 2d.
Plaintiff brought the instant action to recover $1,236.99 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff.CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings. Without such pleadings, unless the record is sufficiently complete (Greene v Wood, 6 AD3d 976 [2004]), the motion is procedurally defective (Wider v Heller, 24 AD3d 433 [2005]), and the court may deny it even in the absence of a party raising the objection (see General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]). Accordingly, we conclude that, under the circumstances presented, the matter should have been denied without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, supra). In view of the foregoing, we do not reach the parties’ contentions with regard to the merits of the motion (see id.).
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