In this action by a provider to recover assigned first-party no-fault benefits, defendant served various discovery requests, seeking, among other things, to conduct an examination before trial of plaintiff. Subsequently, defendant served plaintiff’s assignor with a notice of deposition and notified plaintiff’s counsel of the deposition request. When the assignor failed to appear for the deposition, defendant moved to dismiss the complaint, arguing that, by virtue of the assignment, party status may be imputed to the assignor and, even if such status could not be so imputed, the assignor was under the plaintiff-assignee’s control (see CPLR 3126 [3]). The Civil Court denied the motion, and defendant appealed.
By its terms, the CPLR 3126 (3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, NY Prac § 367 [4th ed]). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85). Similarly, a provider’s party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff’s assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff’s control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126 (Connors, Practice Commentaries, McKinney’s Cons Laws of [*2]NY, Book 7B, CPLR C3101:20; see Doelger, Inc. v L. Fatato, Inc., 7 AD2d 1003 [1959]; National Bank of N. Hudson v Kennedy, 223 App Div 680 [1928]; see also Schneider v Melmarkets, Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Ctr., 117 AD2d 597 [1986]; Andrew Carothers, M.D., P.C. v GEICO Indem Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51756[U] [App Term, 2d & 11th Jud Dists 2008]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).
A.B. Med. Servs., PLLC v Travelers Indem. Co., 2009 NY Slip Op 29510 (App. Term, 2nd 2009)
The question we are presented with is whether the instant action may be maintained where the sole member of plaintiff professional service limited liability company has been legally disqualified from rendering professional services, thereby dissolving said company. As article XII of the Limited Liability Company Law, governing professional service limited liability companies, does not specifically address how a single-member professional service limited liability company, dissolved due to the disqualification of its sole member, may wind up its affairs, we interpret such article and, as applicable, article VII of the Limited Liability Company Law (see Limited Liability Company Law § 1213) as follows.
Plaintiff, as a “professional service limited liability company” (Limited Liability Company Law § 1201 [f]), could render professional services only through individuals authorized by law to render such professional services (Limited Liability Company Law § 1204 [a]). Here, plaintiff’s sole member was Dr. Braver. Once his medical license was suspended, he became legally disqualified from practicing medicine within the state and was disqualified from continuing as a member of plaintiff (see Limited Liability Company Law § 1209). Dissolution occurred on the effective date of the suspension of Dr. Braver’s medical license since, at that point, there were no remaining members of the professional service limited liability company (see Limited Liability Company Law § 701 [a] [4] [a "limited liability company is dissolved and its affairs shall be wound up . . . at any time there are no members"]). We note that although articles of dissolution have now been filed, there is no statutory requirement that articles of dissolution be filed before commencement of the winding up process.
After dissolution, the affairs of the limited liability company are to be wound up (see Limited Liability Company Law § 703 [a]). Where a professional service limited liability company has other members remaining in the company, and continues to render professional [*3]services, a disqualified member must “sever all employment with and financial interests” in such company (Limited Liability Company Law § 1209). However, where, as here, the disqualified member was the sole member of such company, he may wind up the professional service limited liability company’s affairs by, among other things, prosecuting and/or defending an action on behalf of the professional service limited liability company (Limited Liability Company Law § 703 [b] ["the persons winding up the limited liability company's affairs may, in the name of and for and on behalf of the limited liability company . . . prosecute and defend suits, whether civil, criminal or administrative, settle and close the limited liability company's business"). Since the instant action could still be maintained in plaintiff's name despite its dissolution, a stay of the proceedings, pursuant to CPLR 2201, was not warranted, and we strike such provision.
Omni Chiropractic, P.C. v Travelers Ins. Co., 2009 NY Slip Op 52505(U) (App. Term, 2nd, 2009)
A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff’s contention, neither the admission of its bills into evidence nor plaintiff’s prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff’s obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.
Raz Acupuncture, P.C. v MVAIC, 2009 NY Slip Op 52535(U) (App. Term, 2nd, 2009)
MVAIC’s moving papers made a prima facie showing that plaintiff’s assignor is not a “qualified person” (Insurance Law § 5202 [b]) and, thus, that he is not a “covered person” (Insurance Law § 5221 [b] [2]; see Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]). We note that the defense of lack of coverage is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists [*2]2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary. Accordingly, MVAIC’s motion for summary judgment dismissing the complaint should have been granted and plaintiff’s cross motion for summary judgment should have been denied.
A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 2009 NY Slip Op 52537(U) (App. Term, 2nd, 2009)
In this action by providers to recover assigned first-party no-fault benefits, the Civil Court granted a motion by defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) to vacate the default judgment entered against it. However, contrary to MVAIC’s contention, Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted. MVAIC’s initial moving papers made no attempt to establish that MVAIC possessed a meritorious defense, and its belated attempt to establish a meritorious defense in its reply papers should have been disregarded (Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 355 [2005]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).
Great Wall Acupuncture, P.C. v Geico Ins. Co., 2009 NY Slip Op 52538(U) (App. Term, 2nd, 2009)
Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.
Cry me a river Judge Goliwaaaa. How’s the air up there on your high horse?
I need to know if, on trials involving peer reviews, Geico ordinarily calls as its witness the doctor who did the peer review or some other doctor who did not do the peer review.
You might be the only person in no-fault who doesn’t know the answer.
Although I’m not sure if this was a JT appealed case, it probably is, so I’m going to thank him kindly for it. Just what I was looking for to combine a few concepts that I knew existed in the real world, yet had not been mentioned in no-fault law.
The assignor is no longer in privity with the assignee after the assignment is executed with respect to any information gained or acts committed. Proper decision.