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The prima facie case in the First Department and sinking of a disclosure based defenseMay 27, 2015

Tutto Anesthesia v American Country Ins. Co., 2015 NY Slip Op 50738(U)(App. Term 1st Dept. 2015)

What is there to discover?  Did I just say that?  In light of Ralph Medical, discovery is so limited on the carrier end, outside of good-faith based Mallela allegations.

(1) Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008].

This formulation is contingent on what the Court of Appeals does on Vivanne.

(2)  “Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475[2011], lv denied 18 NY3d 810 [2012]).”

Unsure why anybody would go down the AOB route in 2015, and my contribution to the world in Encare solidifed the fee schedule defense precludabiluty doctrine, but also helped usher the April 2013 amendments.

(3) Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921[2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).

I am curious what there is to discovery regarding a lack of coverage defense.  The information for this would be within the possession of the carrier.

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