Kipor Medicine, P.C. v GEICO

[*1] Kipor Medicine, P.C. v GEICO 2010 NY Slip Op 51247(U) [28 Misc 3d 129(A)] Decided on July 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-763 K C. NO. 2009-763 K C

Kipor Medicine, P.C. a/a/o CECILIA LEWIS, MANUEL LINARES, LENA LINDSAY and ROBERT MALAYEV, Appellant,

against

GEICO, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), dated May 29, 2008. The order granted defendant's motion to consolidate this action with 13 other actions, to amend the answer to include two additional affirmative defenses, and to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial.

ORDERED that the order is reversed without costs and defendant's motion to consolidate this action with 13 other actions, to amend the answer to include two additional affirmative defenses, and to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate this action with 13 other pending actions commenced
by the same provider against defendant. Defendant also sought leave to amend the answer to assert two additional affirmative defenses, and to compel plaintiff to respond to specified discovery demands and produce its sole shareholder for an examination before trial. The Civil Court granted defendant's motion, and plaintiff appeals.

The branch of defendant's motion seeking consolidation should have been denied since defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, the branch of [*2]defendant's motion seeking leave to amend the answer should have been denied since defendant's papers presented no evidence that the proposed amendment might have merit (see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). Defendant sought to amend its answer to assert that plaintiff's certificate of incorporation had been revoked following the surrender, in April 2006, of the medical license of plaintiff's sole shareholder. Plaintiff, however, is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to April 2006 (see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Defendant has not demonstrated that the facts herein are akin to a fraudulent incorporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Moreover, since defendant failed to submit an affidavit specifying that any unusual or unanticipated conditions had developed after the notice of trial had been filed which made it necessary for defendant to engage in further pretrial proceedings (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U]), the branch of defendant's motion seeking to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial should also have been denied.

Accordingly, the order is reversed and defendant's motion is denied.

Pesce, P.J., and Weston, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
KIPOR MEDICINE, P.C. a/a/o CECILIA LEWIS,
MANUEL LINARES, LENA LINDSAY and
ROBERT MALAYEV,

Appellant,

-against-
GEICO,

Respondent. [*3]

Golia, J., concurs in the result in the following memorandum:

While I concur with the ultimate decision, I disagree with the reasoning set forth by the majority. The sole shareholder in the plaintiff corporation was Vlad Meisher, M.D. Dr. Meisher pleaded guilty to insurance fraud on April 18, 2006 regarding claims filed with GEICO over the time period of January 1, 2000 through July 1, 2004. He lost his license to practice medicine and thereafter had his certification of incorporation revoked on December 11, 2006.

This action was commenced in Civil Court in or about March 2004, and, not being deterred by his guilty plea, plaintiff filed a notice of trial in October 2006. Nothing of any import occurred in this matter for the next 17 months until March 2008, when defendant filed the subject motion on the eve of trial. The motion sought to consolidate this matter with 13 other actions pending between the same parties. In addition, defendant sought leave to amend the answer to include two additional affirmative defenses concerning the alleged improprieties and the question of fraud as well as seeking additional discovery.

Unlike the majority, I do not find that defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact," or that defendant's papers presented no evidence that the proposed amendment might have merit," or that additional discovery should also have been denied." Notwithstanding the foregoing, I agree with the majority in the ultimate result in that defendant waited nearly two years from the time it knew that Dr. Meisher had committed insurance fraud and was losing his medical license. Indeed, it was this very defendant, GEICO, that was the named victim" in the case to which Dr. Meisher entered his guilty plea. I can find no valid reason for this particular defendant to have ignored these concerns for such an extended period of time. Certainly, if defendant had submitted the same motion within a reasonable time, I would have voted to affirm the order of the Civil Court.

Unlike the majority, however, I view defendant's three requests (to consolidate, amend the answer, and demand discovery) as a unitary application that is predicated upon plaintiff's sole shareholder having acknowledged that he was guilty of insurance fraud. Under those circumstances, the ground for consolidation is a common question of law and fact surrounding the extent of the fraud admittedly perpetrated by plaintiff. Similarly, it would further establish the need for defendant to amend the answer and to obtain additional discovery in order to discern and prove the extent of the fraud committed. Notwithstanding the above views, defendant's failure to raise these issues in a timely manner compels me to agree with the ultimate finding of the majority.
Decision Date: July 16, 2010