August 30, 2012

Triangle R. Inc. v Progressive Ins. Co. (2012 NY Slip Op 51685(U))

Headnote

The main issue in this case was whether the defendant-insurance company had the right to compel the plaintiff to produce its principal for deposition in regards to provider fraud based on fraudulent billing practices. The court considered the fact that the defendant-insurer's notice of deposition was deemed improper, as the defendant was precluded from raising this defense due to its failure to deny the plaintiff's no-fault first-party claim within the statutory 30-day period. The court held that the defendant's motion to compel plaintiff to produce its principal for deposition was denied, and the plaintiff's cross motion for a protective order was granted. The holding of the case was that the defendant-insurance company did not have the right to compel the plaintiff to produce its principal for deposition in relation to the fraudulent billing practices.

Reported in New York Official Reports at Triangle R. Inc. v Progressive Ins. Co. (2012 NY Slip Op 51685(U))

Triangle R. Inc. v Progressive Ins. Co. (2012 NY Slip Op 51685(U)) [*1]

Triangle R. Inc. v Progressive Ins. Co.

2012 NY Slip Op 51685(U) [36 Misc 3d 151(A)]

Decided on August 30, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 30, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570490/11.

Triangle R. Inc., a/a/o Yanitza Coreas, Plaintiff-Appellant,
against
Progressive Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 28, 2011, as denied its cross motion for a protective order and granted defendant’s motion to compel plaintiff to produce its principal for deposition.

Per Curiam.

Order (Fernando Tapia, J.), entered February 28, 2011, insofar as appealed from, reversed, with $10 costs, defendant’s motion to compel plaintiff to produce its principal for deposition denied and plaintiff’s cross motion for a protective order granted.

The defendant-insurer’s notice of deposition—pertaining to its defense of provider fraud based on fraudulent billing practices—was palpably improper (see Dhue v Midence, 1 AD3d 279 [2003]), since defendant is precluded from raising this defense due to its failure to timely deny plaintiff’s no-fault first-party claim within the 30-day statutory period (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]). This is so irrespective of defendant’s claim that the fraudulent billing was part of a widespread scheme to defraud insurers (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 285 [2007], affd 10 NY3d 556 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012