New York Neurology Assoc., P.C. v MVAIC (2009 NY Slip Op 51314(U))

Reported in New York Official Reports at New York Neurology Assoc., P.C. v MVAIC (2009 NY Slip Op 51314(U))

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), dated June 8, 2007, which, upon a grant of plaintiff’s preclusion motion for failure to comply with discovery demands, awarded plaintiff summary judgment on the complaint.

Per Curiam.

Order (Francis M. Alessandro, J.), dated June 8, 2007, affirmed, with $10 costs.

Although preclusion is a drastic remedy, defendant’s unexplained failure to comply with several discovery demands and a subsequent so-ordered stipulation, in which defendant agreed to respond to plaintiff’s written discovery demands or “be precluded from offering such evidence at trial,” warranted the preclusion of defendant’s evidence (see Zapco 1500 Inv. L.P. v Wiener, 299 AD2d 206 [2002]). Defendant’s purported response to the discovery demands, submitted in opposition to the motion for preclusion, amounted to no response since it objected to the questions as “irrelevant and overbroad,” instead of providing the requested information.

On the merits, plaintiff made a prima facie showing of entitlement to judgment as a matter of law. In opposition, defendant failed to raise a triable issue. The proper preclusion of defendant’s evidence rendered it unable to establish those defenses which were timely denied, and to which the precluded evidence related. Inasmuch as defendant, in opposing summary judgment, did not address, much less offer proof in support of its statute of limitations defense, it failed to raise a triable issue with respect to the timeliness of plaintiff’s no-fault action.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: June 29, 2009