Key Takeaway
Court dismisses insurance company's fraud-based declaratory judgment action lacking EUO testimony and claims-specific evidence, calling it a "sad man's DJ"
Mapfre Ins. Co. of N.Y. v Soltanov, 2017 NY Slip Op 31520(U)(Sup. Ct. NY Co. 2017)
We previously discussed that the poor man’s DJ that did not go over too well. This is the sad man’s DJ. I read the papers last weekend. Justice Bluth, who is not afraid to call out fraud (V.S. Med. Servs., P.C. v. Allstate Ins. Co., 11 Misc. 3d 334, 335 , was not impressed either.
The allegations are far reaching and serious. And to be honest, I would not be surprised if they may be true. It pleads common law fraud and Mallela causes of action at its base. Following that, it pleads causes of action based upon “self referral” and “independent contractor actions”. The former is never actionable on a no-fault claim (Allstate Prop. & Cas. Ins. Co. v. New Way Massage Therapy P.C., 134 A.D.3d 495 , leave to appeal denied, 28 N.Y.3d 909 ). The latter is only actionable if the claim is timely denied on that basis.
Thus, this is a Mallela and fraud case.
The evidence is the DOH admonishing Dr. Arguilles, SIU investigators discussing matters (some of which is clearly outside their expertise) and an expert who says the billing is fraudulent. Missing was what you need to prove this type of case: EUO testimony and claims specific evidence to back up the allegations. An expert who opines on matters without a factual basis is guilty of promoting junk science. I learned that – in all places- at matrimonial CLE.
For instance, I just read a Rico on an Allstate case. Putting aside the substantive issue in that case of whether pattern act mail fraud was committed, presented was EUO testimony to attempt to prove some of the allegations presented in the complaint.
This DJ is based upon information and belief and innuendo. So, while I give myself the title for the poor man’s DJ, this should get the award for the sad man’s DJ.
As a stay was not granted and discovery (should the matter survive a 3211 motion and appeal) will be ongoing, this looks to be an exercise in something.
Related Articles
- Preliminary injunction denied in declaratory judgment action
- Failure to cooperate in Mallela cases
- Understanding Mallela-Based Discovery in New York No-Fault Insurance Cases
- Why does a Malella defense survive an untimely disclaimer
- New York Declaratory Judgment Actions: Supreme Court vs Civil Court Jurisdiction Issues
