Multiquest, P.L.L.C. v Allstate Ins. Co.

[*1] Multiquest, P.L.L.C. v Allstate Ins. Co. 2005 NY Slip Op 52071(U) [10 Misc 3d 1061(A)] Decided on December 20, 2005 Civil Court Of The City Of New York, Queens County Markey, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2005
Civil Court of the City of New York, Queens County

Multiquest, P.L.L.C., assignee of Maria Mercedes, Plaintiff,

against

Allstate Insurance Company, Defendant.



128116/2004



For Plaintiff: Belesi & Conroy, P.C., by Wayne H. Wink, Jr., Maria Campese Diglio, Kathleen Ann Marshall, Esqs., 1225 Franklin Avenue, suite 400, Garden City, New York 11530

For Defendant: Bruno, Gerbino & Soriano, LLP, by James K. Hogan, Jeffrey S. Siegel, Vincent F. Gerbino, Oko Acquaye, Esqs., 445 Broad Hollow Road, suite 220, Melville, New York 11747

Charles J. Markey, J.

Before this Court are 12 actions seeking no fault first class benefits, involving motions for summary judgment involving plaintiff Multiquest, P.L.L.C. , and assorted cross-motions, all raising principally the same issue: should the decision of the New York Court of Appeals in State Farm v. Mallela, 4 NY3d 313 [2005] [also known in the no fault bar as "Mallela III"] be applied prospectively or retroactively. That case denied no fault benefits to plaintiff providers that were organized fraudulently. This Court has invited briefing, and, in addition to the papers on the various motions and cross motions in the 12 Multiquest actions, studied the various memoranda of law submitted by both counsel, meant to be read in all 12 actions.

In this particular action involving Multiquest, surrounding services provided to Maria Mercedes during 1999, prior to the adoption of 11 NYCRR 65-3.16(a)(12) [effective April 4, 2002]. That regulation hinges reimbursement for services based on compliance and adherence with licensing requirements.

It is a tribute to all the Judges of the Civil Court, Queens County, that although they have reached different conclusions on the issue, their opinions this year have been on the leading edge, setting the contours of the debate. The highly articulate, cogent, and well-written opinion of Judge Anna Culley in A.T. Medical, P.C. v. State Farm Mut. Ins. Co. (___Misc 3d ____, 2005 WL 2837509, 2005 NY Slip Op 254610) reasons that public policy concerns warrant denial of claims made by corporate malefactors who organize their enterprises in violation of existing law (accord, Metroscan Imaging, P.C. v. Geico, 8 Misc 3d 829 [Bernice Siegal, J.]; Multiquest , PLLC v. Allstate Ins. Co., ___Misc 3d ____, 2005 WL 2085966, 2005 NY Slip Op 25356 [Dennis Butler, J.]). Judges Culley, Siegal, and Butler of this Court thus hold that Mallela III should be applied retroactively.

In contrast, my colleague, Judge Joseph Esposito, in Multiquest, PLLC v. Allstate Insurance Co. (____ Misc 3d ___, 2005 WL 3274885, 2005 NY Slip Op 25512), in his characteristic penetrating and tight analysis, concluded that Mallela III should not be applied [*2]retroactively, especially since only a regulation is involved.

The two differing views of my colleagues both deserve attention by students of the issue because of the fine arguments made therein. In the final analysis, the undersigned agrees with Judge Esposito's recent decision that Mallela III should not be applied retroactively.

In addition to all of the reasons stated by Judge Esposito, this Court believes that if the Court of Appeals had wanted to provide a rule of retroactivity, it was fully informed of the issue at the oral argument of Mallela III and could have determined the issue in its opinion. Of course, many reasons may play into why a court does not discuss a certain argument. Sometimes in the hope of winning unanimity or a majority, compromises are made in forging judicial consensus. Other times, an appellate court will want to see how lower courts treat an issue, thereby benefiting from their thoughts, and to see, by experience, whether any division has, indeed, occurred among lower courts.

In the present case, this Court believes that the Court of Appeals was aware of the fact that, if a rule of retroactivity were to be announced, insurers would be filing motions in thousands of no fault cases, seeking to recapture payments already made. The Court of Appeals probably thought of this possibility and decided not to stimulate such unbridled litigation to already congested motion calendars in the no fault parts.[FN1]

Second, to apply a rule of retroactivity, in the present circumstance, should not be done lightly. Despite the method of questionable, improper, and even unethical incorporation of a plaintiff provider, services were allegedly furnished, consistent with the public policy of this State, in the expectation that a claim would be filed and that payment would be made expeditiously. Thus, as the undersigned noted in Metropolitan Radiological Imaging, P.C. v. State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675, 677 [NYC Civ Ct Queens County 2005]): "The "No Fault Law" replaced the common law right to seek tort recovery with a statutory system designed to provide a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of [automobile] accidents' (Walton v. Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996])."

For a court to adopt a rule of retroactivity, under the facts of the particular circumstances, would be tantamount to imposing a rule alienating a property right. The rights of plaintiff health care providers that provided services in the expectation of filing a claim under a statutory system for the quick, expeditious handling and processing of claims would be subverted. As shown, resort to public policy principles can be a two-edged sword.

This Court holds that Mallela III should not be applied retroactively. The defendant's motion for summary judgment is, in all respects, DENIED.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________[*3]Hon. Charles J. Markey

Judge, Civil Court, Queens County

Dated: Jamaica, New York

December 20, 2005 Footnotes

Footnote 1: In Socrates Psychological Servs., P.C. v. Progressive Cas. Ins. Co. (7 Misc 3d 642, 645 n.1 [NYC Civ Ct Queens County 2005], the undersigned noted that adjournments of routine motions in the specially created No Fault Parts already require waits of almost a year!