Consolidation and belated discovery denied
SEE COMMENTS FROM DAMIN TOELL, ESQ. – for further explanation of this case.
Kipor Medicine, P.C. v GEICO, 2010 NY Slip Op 51247(U)(App. Term 2d Dept. 2010)
The branch of defendant’s motion seeking consolidation should have been denied since defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, the branch of [*2]defendant’s motion seeking leave to amend the answer should have been denied since defendant’s papers presented no evidence that the proposed amendment might have merit (see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d 806, 808 ). Defendant sought to amend its answer to assert that plaintiff’s certificate of incorporation had been revoked following the surrender, in April 2006, of the medical license of plaintiff’s sole shareholder. Plaintiff, however, is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to April 2006 (see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Defendant has not demonstrated that the facts herein are akin to a fraudulent incorporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 ).
Moreover, since defendant failed to submit an affidavit specifying that any unusual or unanticipated conditions had developed after the notice of trial had been filed which made it necessary for defendant to engage in further pretrial proceedings (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U]), the branch of defendant’s motion seeking to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial should also have been denied.
Two points. One, consolidation motions seem to have the same rules as severance motions. While it is easy to sever, it is equally as difficult to consolidate. Two, belated discovery following the filing of a notice of trial is shunned upon.
A better question is assuming the facts as presented by Justice Golia are accurate (see below), why would anybody prosecute this type of action. Does this make the law firm prosecuting this action a co-conspirator or accessory after the fact to a fraud? I am not sure –
“Unlike the majority, I do not find that defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact,” or that defendant’s papers presented no evidence that the proposed amendment might have merit,” or that additional discovery should also have been denied.” Notwithstanding the foregoing, I agree with the majority in the ultimate result in that defendant waited nearly two years from the time it knew that Dr. Meisher had committed insurance fraud and was losing his medical license. Indeed, it was this very defendant, GEICO, that was the named victim” in the case to which Dr. Meisher entered his guilty plea. I can find no valid reason for this particular defendant to have ignored these concerns for such an extended period of time. Certainly, if defendant had submitted the same motion within a reasonable time, I would have voted to affirm the order of the Civil Court.”
The actions are consolidated and a joint trial is ordered
Anthony M. Palumbo, D.C. v Tristate Consumer Co., 2010 NY Slip Op 50443(U)(App. Term 2d Dept. 2010)
“[d]efendant’s motion is granted to the extent of directing a joint trial of the three actions in Queens County, and the Clerk of the Civil Court of the City of New York, New York County, shall forthwith deliver to the Clerk of the Civil Court of the City of New York, Queens County, all papers and certified copies of all minutes and entries in the action entitled Boulevard Surgical Center, A.C. a/a/o Marc Taly v Tri-State Consumer Insurance Co., under index No. 33825/08.”
“[D]efendant has demonstrated that two other providers have commenced two separate actions for the same services rendered on the same date at the same location. “Where common issues of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion” (Perini Corp. v WDF, Inc., 33 AD3d 605, 606 ). Here, the interests of justice and judicial economy would be served by a joint trial of the actions since defendant intends to defend all three actions on the ground that the services rendered were not medically necessary. Moreover, the papers submitted in opposition to the motion failed to establish that a joint trial [*2]would prejudice a substantial right.”
It looks like an MUA case where there are numerous providers, represented by different attorneys, who brought actions in different venues. My only question is where is the Anesthesiologist’s lawsuit?