June 28, 2012

Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 51288(U))

https://www.beynensonlaw.com/case-law/horizon-med-p-c-v-travelers-prop-cas-ins-co-2012-ny-slip-op51288u/

Court: Appellate Term, Second Department
Decided: June 28, 2012
Citation: 2012 NY Slip Op 51288(U) · 36 Misc 3d 131(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co., 36 Misc 3d 131(A), 2012 NY Slip Op 51288(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's failure to comply with a signed discovery stipulation precluded proof of its claims and required striking the complaint. The stipulation required responses to outstanding discovery demands within 30 days or preclusion as to unprovided items. Although it was not so-ordered and did not operate as a conditional preclusion order, the attorneys' signatures made it enforceable under CPLR 2104 and contract principles. The provider failed to answer a demand concerning submission of no-fault claims and copies of those claims. With no basis to deny enforcement, the provider could not establish its prima facie case. The Appellate Term, Second Department, reversed and granted the insurer's unopposed motion to strike.

Reported in New York Official Reports at Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 51288(U))

[*1]

Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co.

2012 NY Slip Op 51288(U) [36 Misc 3d 131(A)]

Decided on June 28, 2012

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2571 Q C.

Horizon Medical, P.C. as Assignee of AUSHIF NELSON, Respondent, —
against
Travelers Property Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated August 18, 2010. The order, in effect, denied defendant’s motion to strike the complaint based on plaintiff’s failure to comply with a discovery stipulation.

ORDERED that the order is reversed, without costs, and defendant’s motion to strike the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which, in effect, denied its unopposed motion to strike the complaint on the ground that plaintiff had failed to comply with a May 2010 stipulation. It is uncontroverted that plaintiff did not comply with the terms of the May 2010 stipulation between the parties, which provided that, if plaintiff failed to respond to defendant’s outstanding discovery demands within 30 days, it would be precluded “from offering evidence or contesting any defense as to those items demanded but not provided.” [*2]

The May 2010 stipulation was not “so-ordered” and, thus, did not function as a conditional order of preclusion which becomes absolute upon a failure to comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, it was subscribed by the parties’ attorneys (see CPLR 2104). Stipulations of settlement are independent contracts that are subject to the principles of contract law, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d 551 [2002]). The courts will generally deny enforcement of a stipulation where its enforcement would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]).

Defendant’s discovery demands included, among other things, a request for a declaration as to whether plaintiff had submitted any no-fault claims and, if so, copies of those claims. As plaintiff failed to respond to this demand, we find no basis to deny enforcement of the stipulation, pursuant to which plaintiff is precluded from offering evidence of its claims. Consequently, plaintiff cannot make out its prima facie case.

Accordingly, the order is reversed and defendant’s motion to strike the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer) (rules on the question, but another ground decided the case)

Held that, having been precluded by an enforced discovery stipulation from offering evidence of its claims, the provider could not make out its prima facie case, so the complaint was struck.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

Cited in this decision

Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))A conditional preclusion order becomes absolute when a provider fails to comply sufficiently and timely with its discovery requirements.

Similar decisions

Village Med. & Rehab v Travelers Indem. Co. (2012 NY Slip Op 51349(U))The provider's 38-day discovery delay triggered stipulated preclusion and prevented it from establishing its prima facie case.
Kimball Med., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50639(U))The provider's failure to comply with a so-ordered discovery stipulation made its conditional evidentiary preclusion absolute.
New Horizon Surgical Ctr., LLC v Travelers Ins. Co. (2019 NY Slip Op 51690(U))An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests.
Nordique Med. Servs., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50648(U))The provider's failure to comply with a conditional preclusion order barred its prima facie proof and required dismissal.
New Horizon Surgical Ctr., L.L.C. v Travelers Ins. (2019 NY Slip Op 50281(U))The provider's action was premature because its verification submissions did not include the requested signed informed consent form.