AAA Chiropractic, P.C. v MVAIC, 2010 NY Slip Op 51896(U)(App. Term 2d Dept. 2010)
“The Civil Court granted defendant’s motion for summary judgment, finding that plaintiff had failed to show a reasonable justification for the late submission of its claim forms, and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.”
“It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services at issue were rendered and that plaintiff did not do so…. MVAIC’s denial of plaintiff’s claims, based upon their untimely submission, also informed plaintiff that MVAIC could excuse the delay if plaintiff provided “written justification” for the delay…. In opposition to MVAIC’s motion for summary judgment, plaintiff did not establish that it had provided MVAIC with a written justification for its untimely submission of the claim forms. Consequently, defendant established its entitlement to judgment as a matter of law….”
“While plaintiff contends that the Civil Court erred in granting defendant’s motion for summary judgment and denying its cross motion to compel defendant to respond to plaintiff’s discovery demands, plaintiff’s bald conclusory assertion that defendant should be compelled to respond to plaintiff’s discovery demands because it could not adequately oppose defendant’s motion for summary judgment without said discovery responses (see CPLR 3212 [f]) was insufficient to demonstrate that discovery was needed in order to show the existence of a triable issue of fact”
MVAIC obtained summary dismissal based upon violation of the 45-day submission rule. The Appellate Term denied the portion of the opposition seeking to deny the motion based upon outstanding discovery. CPLR 3212(f). Would the Appellate Term, First Department held the same way?
See, Socrates Med. Health, P.C. v MVAIC , 2010 NY Slip Op 51780(U)(App. Term 1st Dept. 2010)(“Civil Court properly denied defendant’s motion for summary judgment, since material outstanding disclosure remains extant. Summary judgment may be renewed upon the completion of disclosure.”)
5 Responses
In Socrates we indeed made a non boilerplate effort to establish need for discovery.
AAA is not our case so streak is alive.
The one thing about no-fault is that if you seek discovery beyond bills, NF-10s and medical reports, you need to present tangible evidence allowing you to obtain same. I think a law journal article could be written on discovery in no-fault matters. Sometimes I actually think that the standard to obtain discovery, as the lower courts apply same, is the standard found in UDCA 1807.
Should we entitle this: “The MANIAC Strikes Back.”
They tend to win the 45-day rule cases. So there is no great victory in AAA. But, they struck back again today in a First Department case, at least sufficient to raise a triable issue of fact. Of course, I would like to see them marshal the proof to sustain their burden of lack of coverage at trial. That should be entertaining.
I went to a Socrates Medical. All they had me do there was debate and come up with philosophy. My neck still hurt. So I went to Plato Medical. They made me drink Hemlock and all my pain went away.
So Rogakian