October 3, 2005

Dyckman Med. Diagnostic, P.C. v Travelers Prop. Cas. (2005 NY Slip Op 51572(U))

Headnote

In an action for assigned first-party no-fault benefits, the Civil Court on its own initiative withdrew the insurer's motion to dismiss for failure to comply with court-ordered discovery. The Appellate Term held that the motion should have been granted because the plaintiff defaulted in opposing it. It noted that the insurer had diligently tried to enforce the discovery stipulation of July 30, 2003 and that its motion for discovery sanctions was not untimely. The court reversed and granted the motion to dismiss the complaint under CPLR 3126.

Reported in New York Official Reports at Dyckman Med. Diagnostic, P.C. v Travelers Prop. Cas. (2005 NY Slip Op 51572(U))

[*1]
Dyckman Med. Diagnostic, P.C. v Travelers Prop. Cas.
2005 NY Slip Op 51572(U) [9 Misc 3d 129(A)]
Decided on October 3, 2005
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 3, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, P.J.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570544/04

Dyckman Medical Diagnostic, P.C., Assignee of Gertrudis Morel, Plaintiff-Respondent,

against

Travelers Property Casualty, Defendant-Appellant.


Defendant appeals from an order of the Civil Court, Bronx County, dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) which sua sponte “withdrew” defendant’s motion to dismiss the complaint for failure to comply with court-ordered discovery and denied that branch of the motion for alternate relief to reduce the ad damnum clause to the sum of $4,098.77.


PER CURIAM:

Order dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) reversed, with $10 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3126 for failure to comply with court-ordered discovery is granted.

In this action to recover assigned first-party no-fault benefits for medical services rendered, defendant’s motion to dismiss the complaint for failure to comply with court-ordered discovery should have been granted upon plaintiff’s default in opposing the motion (see Tutt v City of Yonkers, 11 AD3d 532 [2004]; Lo Cicero v J.F.K. Intl. Airport, 131 AD2d 305 [1987]). We note that defendant diligently attempted to enforce the court-ordered stipulation for discovery dated July 30, 2003 and that its motion for discovery sanctions was not untimely. [*2]

This constitutes the decision and order of the court.
Decision Date: October 03, 2005