Late Notice of Trial and standard of law as to MalellaAugust 18, 2011

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 2011 NY Slip Op 51551(U)(App. Term 2d Dept. 2011)

1) the 20-day time period to make a motion to strike is not absolute.

2)”detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws”

3) Why do Dr. McGee facilities seem to have these Malella issues?

Trivia – I subpoenaed Dr. McGee quite a few years ago to come to a trial on an EMG/NCV test he performed.  He actually showed up.  I am not sure what his view on complying with subpoenas is nowadays.

“While defendant’s motion to strike the action from the trial calendar was untimely, under all of the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]). Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded.”

4 Responses

  1. Kurt LunDGREN says:

    Why do McGee facilities seem to have these Malella issues?

    I represent Dr. McGee.

    His facilities are a cash cow for the defense firms. For every dollar paid to his facilities, God and a few other people only know how much is paid to defense firms.

    He is one of the only providers that stand up to the likes of State Farm. He sued State Farm and Allstate.

    The problem is that he is too successful. He has too many patients. Thus, he has to be taken down.

    It doesnt matter that HE sees the patients, He controls the medicine, He controls the practice, and He appears for EBTS, EUOs etc, and turns over most every document the carriers require ….. but he is Malella because the carriers say so. Yet, I believe, the facts say something different.

    As you indicated JT, he is willing to back up his practice and will appear in Court. He is not always easy to work for but who is? He is perhaps my most demanding client. He may piss off carriers because he fights back and doesnt cower on the mention of Malella. And I fight for him because I believe in him.

    So the answer to your question as to why certain insurers have so many Malella issues with him – its because they can. They can delay payment by requiring EUOs again and again, no matter how many times he appears and no matter how much documentation he provides. They can harass because the Insurance Department and the Courts allow it.

    The QB Jewish Case is not mine. If I have any, I have but a few QB Jewish cases. But I am quite confident that he will apppear for deposition in that matter (although he possibly has appeared for Allstate many time in the past for EUO and EBT) and answer the same questions, and provide the same discovery, to the same defense firms, again.

    Why does he have so many Malella issues? Because the insurance companies have created the issues. Because they do not want to pay. Because they do not like the fact that he fights back.

    its easy to allege Malella. Proving it is a different matter. As far as I am concerned, bring it on.

    Nuff said.

    • JT says:


      Who hasn’t represented John J. McGee? I know he fights back, and the word on the street is he ends up getting paid big money at the end of the day because nobody can substantiate the Malella defense that is often alleged against him. Perhaps it begs the questions why certain carriers waste the time and resources fighting him on Malella grounds? He must be doing something right, because I served him years ago in a very nice house in Huntington. His wife was a very charming lady if my memory serves me correct.

  2. Kurt LunDGREN says:

    Thanks Jt for responding.

    Yes, I am not the only one representing McGee, although sometimes I feel like that. Its frustrating JT on many fronts. But he wears the white shirt with his name on it everyday at his offices, sees the patients, battles with us attorneys who are not fighting hard enough, is always available and responsive to any request of mine, and he, and no one else, controls his medicine and finances.

    Why do certain carriers waste time and resource fighting him on Malella ground – because the Courts let them. And he is a cash cow to certain defense firms. They would rather pay defense counsel than pay his claims.

    This is of course good for defense counsel.

    So as I said, bring it on. McGee will not roll over and he will defend his practice. Personally, I would prefer to defend on medical necessity, but who wouldnt! Those are the cards that us McGee attorneys are dealt.

    • JT says:

      My goal is to do what is in the best interest of my clients. Many times, that involves cutting my fees, doing things for free or telling my clients to pay a provider instead of paying me and then (1) the provider and (2) their attorney. It is frustrating when I see this greedy behavior on the defense side. I see it enough on the Plaintiff side.

      And Kurt, I have my own feelings about McGee that I will share with you offline when I see you in court.