Opinion
4787/04.
Decided July 6, 2009.
Israel, Israel Purdy, LLP for Plaintiff.
Carman, Callahan Ingham, LLP for Defendant.
BACKGROUND
Defendant moves to compel the deposition of German Laufer ("Laufer") more than 3 years after the filing and service of the Notice of Trial and Certificate of Readiness for Trial. Laufer is the principal of the plaintiff Media Neurology P.C. ("Media").
Media provided medical treatment to Jerome Ajodhasingh for injuries he sustained in a motor vehicle accident that occurred on May 17, 2004. Ajodhasingh assigned his right to receive no-fault benefits for this treatment and testing to Media.
On or about July 16, 2004, Media submitted its bill for this treatment to Liberty Mutual Insurance Company ("Liberty") for payment. Liberty denied payment of the bill on the grounds the services were not medically necessary.
Liberty did not serve a notice to take the deposition of Laufer as part of its discovery demands.
Discovery was completed. Media filed a Notice of Trial and Certificate of Readiness for Trial on March 27, 2006.
Since the recovery sought was less than $6000, the action had to proceed to mandatory arbitration. 22 NYCRR Part 28. Although the Notice of Trial was filed in March 2006, the action did not proceed to arbitration until June 24, 2008. A copy of the arbitrator's award was mailed to the attorneys for the parties on July 7, 2008. 22 NYCRR 28.11. The Demand for a Trial De Novo was filed and the required fee was paid on July 15, 2008. 22 NYCRR 28.12.
The trial of this action was further delayed by the closing of the Third District Courthouse at the end of 2008 resulting in the action be reassigned to Civil Part 3 in Hempstead
In November 2008, Laufer was indicted in Queens County on charges of no-fault insurance fraud and on other charges. The indictment alleges inter alia Laufer's billed no-fault insurance carriers for services he did not perform or for tests he did not conduct.
DISCUSSION
A party has 20 days from service of the Notice of Trial and Certificate of Readiness for trial to move to vacate same on the grounds discovery is not complete. 22 NYCRR 212.17(c). This motion was made substantially more than 20 day after the Notice of Trial was served and filed.
In order to obtain discovery after the filing of the Notice of Trial, the party seeking discovery must demonstrate unusual and unanticipated circumstances developed after the filing of the Notice of Trial necessitating the discovery. Futersak v. Brinen, 265 AD2d 452 (2nd Dept. 1999). Generally, discovery is not permitted after a Notice of Trial is filed. Bilotti v. City of New York, 199 AD2d 297 (2nd Dept. 1993). Liberty asserts Laufer's indictment for his alleged filing of fraudulent no-fault claims provides the unusual and unanticipated circumstances necessitating the deposition.
While a post Notice of Trial indictment of a principal of the plaintiff would ordinarily be an unusual and unanticipated circumstance permitting a deposition, it is not in this case.
A no-fault insurance carrier must either pay or deny a claim with 30 days of receipt of the claim. Kingsbrook Jewish Medical Center v. Allstate Ins. Co. , 61 AD3d 13 (2nd Dept. 2009); and 11 NYCRR 65-3.8(a)(1). Except for certain limited exception, that are not applicable in this case, an insurance carrier is precluded from rasing a defense to a no-fault claim not stated in a timely served denial. Hospital for Joint Disease v. Travelers Prop. Cas. Ins. Co. , 9 NY3d 312 (2007); and Presbyterian Hosp. in the City of NY v. Maryland Cas. Co., 90 NY2d 274 (1997). While a no-fault carrier may deny a claim on the grounds the claim is fraudulent, it must do so in a timely served denial. Fair Price Medical Supply Corp. V. Travelers Ins. Co., 10 NY3d 556 (2008). Liberty did not deny the claim on the grounds of fraud. Therefore, Liberty is precluded from raising fraud as a defense to this action at trial. Id.
CPLR 3101(a) requires ". . . full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The terms "material" and "necessary" are to be liberally construed to provide for disclosure fo all factual material having a bearing on the case which will assist in preparing for trial. Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968); and Wall v. Villa Roma Resort Lodges, Inc., 299 AD2d 351 (2nd Dept. 2002).
Information is "material and relevant" for the purposes of CPLR 3101(a) if it, ". . . will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason." Allen v. Crowell-Collier Publishing Co., supra at 406. . The demanded material must be produced if it can be used as evidence in chief, for rebuttal or for cross-examination. Allen v. Crowell-Collier Publishing Co., supra ; and Wind v. Eli Lilly Co., 164 AD2d 885 (2nd Dept., 1990).
The deposition of Laufer is not material or relevant to this action. Since Liberty did not assert fraud as a basis for the denial of the claim filed by Media which is the subject of this action, Liberty is precluded from raising fraud as a defense to this action at trial. Fair Price Medical Supply Corp. v. Travelers Ins. Co., supra .
Laufer may not testify at trial. Media can establish its prima facie case without Laufer's testimony.
Plaintiff establishes a prima facie case in an action for first party no-fault benefits through ". . . evidentiary proof that the prescribed statutory billing forms have been mailed and received, and that the payment of the no-fault benefits was overdue (citations omitted)." Westchester Med. Ctr. v. AIG, Inc. , 36 AD3d 900 (2nd Dept. 2007); Mary Immaculate Hosp. v. Allstate Ins. Co. , 5 AD3d 742 (2nd Dept. 2004); and Bajaj v. General Assurance Co., 18 Misc 3d 25 (App.Term 2nd 11th Jud. Dists. 2007).
The testimony from someone working in Media's office other than Laufer could establish the bill submitted to Liberty in this case was a business record. William Conover, Inc. v. Waldorf, 251 AD2d 727 (3rd Dept. 1998); Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist.Ct. Nassau Co. 2008) ; and Lenox Hill Radiology v. New York Cent. Mut. Fire Ins. Co. , 20 Misc 3d 851 (Dist.Ct. Nassau Co. 2008). Someone other than Laufer could testify to establish the bill was submitted timely. Careplus Med. Supply Inc. v. Travelers Home Mar. Ins. Co., 7 Misc 3d 133(a) (App.Term. 2nd 11th Jud. Dists. 2005); and King's Medical Supply, Inc. v. Progressive Ins., 3 Misc 3d 126(a) (App.Term. 2nd 11th Jud. Dists. 2004).
Timely submission of a no-fault claim creates a presumption of medical necessity. All County Open MRI Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th 10th Jud. Dists. 2006).
The only purpose for which the charges alleged in the Queens County indictment could be used would be for impeachment if Laufer testifies at trial. CPLR 3117(a)(1).
If Laufer were to be convicted at trial or plead guilty to the Queens County charges prior to the trial of this action, Laufer could be asked if he testified at the trial of this action if he has been convicted of a crime and questioned regarding the facts underlying the conviction, People v. Sorge, 301 NY 198 (1950); and CPLR 4513.
Laufer could be cross-examined at trail regarding the allegations contained in the indictment or any other uncharged acts if those acts are criminal, immoral or vicious. People v. Walker, 83 NY2d 455 (1994); and People v. Schwartzman, 24 NY2d 214, cert. dnd. 396 U.S. 846 (1969). Laufer could also be cross-examined regarding these facts underlying the indictment or any other acts not charged in the indictment if they indicated an untruthful bend or a willingness to place his interests above those of society. People v. Walker, supra . If Laufer is acquitted, he could not be questioned regarding any of the facts alleged in the indictment. People v. Santiago, 15 NY2d 640 (1964); and People v. Parsons , 6 AD3d 364 (1st Dept. 2004).
If this court ordered Laufer to appear for deposition, Laufer could assert his Fifth Amendment right at the deposition. Dibble v. Consolidated Rail Corp., 181 AD2d 1040 (4th Dept. 1992); White v. Martins, 100 AD2d 805 (1st Dept. 1984); Ferraro v. New York Telephone Co., 94 AD2d 784 (2nd Dept. 1983); Watson v. State of New York, 53 AD2d 798 (3rd Dept. 1976); and Mora v. St. Vincent's Catholic Med. Ctr. of New York , 8 Misc 3d 868 (Sup.Ct. N.Y.Co. 2005). Thus, even if the court were to order Laufer to appear for deposition there is a strong likelihood that Laufer would refuse to answer the questions posed to him by Liberty's attorney.
The determination of whether unusual or unanticipated circumstances exist permitting discovery after the filing of the Notice of Trial is one addressed to the discretion of the trial court. Meadow Lane Equities Corp. v. Hill,-A.D.3d-, 879 NYS2d 725 (2nd Dept. 2009).
Since the testimony that could be elicited at deposition could only be used only for the limited purpose of impeachment on cross-examination of a witness who might not even testify at trial and would could refuse to answer the questions by invoking his Fifth Amendment right, defendant has not establish unusual or unanticipated circumstances exist that would permit defendant to take the deposition of Laufer three years after the Notice of Trial was filed. Schissler v. Brookdale Hosp. Ctr., 289 AD2d 469 (2nd Dept. 2001).
The court notes that if Laufer is convicted of insurance fraud and this claim is a fraudulent claim, Laufer could be compelled to make restitution as part of his plea or sentence. Penal Law § 60.27.
For the foregoing reasons, defendant's motion for an order compelling German Laufer to appear for deposition is denied.
The attorneys for the parties are directed to appear for a pre-trial conference in Civil Part 3 on August 11, 2009 at 9:30 a.m.