Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 2012 NY Slip Op 51165(U)(App. Term 1st Dept. 2012)
Defendant appeared to work under a novel theory that it could use discovery to figure out who is primary and, in the alternative, to find out if Plaintiff was fraudulentally incorporated. Defendant’s attempt to obtain discovery on the first score was a loser, on the law. Defendant’s attempt to obtain discovery on the second score was a loser, on the law.
“The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).”
9 Responses
The Court is correct with regard to discovery regarding priority of payment. Under the priority of payment regulations, the first insurer to receive the claim is obligted to pay and then can seek recovery in inter-company priorty of payment arbitration under section 5015(b) of the Insurance Law. The purpose behind the priorty of payment regulation is to provide quick efficient compensation to the injured party and allow the insurers an opportunity to fight it out later amongst themselves.
I agree with Mitch. Priority of payment is neither a defense nor a discovery issue.
“case specific allegations”. Does this put an end to the boilerplate verification requests issued to providers and knee jerk motions to vacate notices of trial?
This has to be one of the most stinging defeats for the carriers on the corporate discovery type issues that I have seen in years. Just amazing how the carrier in this case on really bad facts created awful law.
Finally someone said “Enough” to knee jerk discovery.
Its aweful when the court gets it right.
Does anyone think this decision deviates from the existing standard of requiring a “founded belief” in order to do Malella discovery? I don’t.
There’s a “founded belief” standard to get Mallela discovery?
As Martin Sheen told Colonel Kurtz in Apocalypse Now: “Frankly I do not see any method.”
Well frankly I do not see an Malella standard save one … ask insurance company and the insurance Gods a.k.a. the Courts of New York State — will make sure you receive so you can delay and screw people up.
How easy it is to be a defense attorney for an insurance company. Demand every friggin thing on every case and make the cost of discovery exceed the value of the case.
In the future I plan to make the insurance companies pay for every copy — 50 cents a page for material and time — that I make. I want the check in hand and deposited and cleared before I send the discovery.
And in support of my demand I will state: “We gave them this a million times.”