Quality Health Supply Corp. v Progressive Ins. Co., 2021 NY Slip Op 51028(U)(App. Term 2d Dept. 2021)
“Upon a review of the record, we find that the testimony of defendant’s senior litigation representative, as well as the certified FOIL documents entered into evidence at trial, were insufficient to establish that plaintiff did not have a Department of Consumer Affairs license for the time period of January 2010 to June 2016 (cf. Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). The FOIL evidence solely established that a company named “Quality Heath Supply Corp. Inc.” was not licensed during this time period and no evidence was provided that plaintiff “Quality Health Supply Corp.” is the same entity as “Quality Health Supply Corp. Inc.” As there was no other evidence to establish that plaintiff was not properly licensed at the time it sold the durable medical products to its assignor, plaintiff should have been awarded a judgment in its favor.”
Let us assume of for the sake of argument that Progressive got this right. The Mallela case is clear that technical violations will not satisfy an insurance carrier’s burden to prove a non licensure defense. The Appellate Division was clear that PHL violations were not sufficient to withhold medical benefits. Mallela is limited to the “doc in a box” defense. Beyond that, a claim for fraud or the monthly Rico’s that GEICO files is the way around this.
