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"
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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.
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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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Declaratory Judgment Practice in New York
Declaratory judgment proceedings provide a mechanism for parties to obtain binding judicial determinations of their legal rights and obligations. In insurance litigation, declaratory judgments are commonly sought to resolve disputes over policy coverage, fraud allegations, and the enforceability of policy conditions. These articles analyze declaratory judgment procedure, the standards courts apply, and the strategic implications of seeking or defending against declaratory relief in New York insurance cases.
72 published articles in Declaratory Judgments
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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