Mallela – or was it?December 18, 2018
Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C.2018 NY Slip Op 08238 (1st Dept. 2018)
This was an interesting case that discusses the distinction between the defenses of “Mallela” and “over-billing”.
“We find that petitioner’s defense is not a Mallela defense. It is based on the guilty plea of Andrey Anikeyev, who, according to petitioner, is respondent’s “de facto owner,” to conspiracy to commit health care fraud and mail fraud. Anikeyev pleaded guilty to billing insurance companies “for health care services for time periods in excess of the actual time period the patient spent with [the] acupuncturist.” This plea supports nothing more than “a defense that the billed-for services were never rendered,” which is “more like a normal’ exception from coverage (e.g., a policy exclusion) [than] a lack of coverage in the first instance” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 ), and therefore does not fall into the “settled law recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage”
And then comes the real nail in the coffin: “Respondent is entitled to reasonable attorneys’ fees for this appeal, to be determined by Supreme Court”