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 ), a defense which is not precluded.”