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Zlatnick v. Government Employees Insurance Co.11/25/2003
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The present case does not involve any allegation of fraud. It is a "garden variety" no fault action by a medical care provider who was assigned benefits against an insurer.
GEICO, the defendant-insurer in the present action, is not entitled to serve an EBT notice, in knee-jerk fashion, to every no-fault lawsuit filed against it, without demonstrating why responses to written interrogatories were somehow lacking. Any other result would effectively foreclose plaintiffs from litigation and subvert the purpose of no-fault laws. In the same manner that an EBT may serve a salutary function, like many other commodities, it can be used or abused as an instrumentality to harass or deter a party from enforcing its rights.
Interestingly, the Second Department, in the case cited at the outset of this opinion, (*12)Matter of Simmons (59 AD2d 468), assessed a substantial attorneys fees award against GEICO, according to the no-fault statute, despite a relatively small principal amount, stating:
It is clear that the legislative plan for the prompt payment of claims such as this has thus been foiled and frustrated and the laudable intent of the no-fault law to free our courts for more important tasks has, at least to this extent, been aborted. . . .
The no-fault legislation was designed primarily to encourage speedy payment of claims, regardless of fault, and to put an end to litigation [citation omitted]. . . . It is clear that the Legislature intended that an insurance company not be able to frustrate the operation of the statute by throwing legal obstacles in the path of recovery.
(Matter of Simmons v. GEICO, 59 AD2d at 473). Despite the passage of time since Simmons, unfortunately not much has changed, and the Special Term and Trial Term calendars of the Civil Court of the City of New York are a testament to the subversion of the legislative scheme. (*13) The defendant's motion for an order of dismissal is, in all respects, denied, and the plaintiff's cross-motion for a protective order is granted.
The foregoing constitutes the decision, order, and opinion of the Court.
Hon. Charles J. Markey Judge, Civil Court, Queens County
Dated: November 25, 2003
(*14)
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