December 23, 2011
Blumenthal Chiropractic, P.C. v Praetorian Ins. (2011 NY Slip Op 52386(U))
https://www.beynensonlaw.com/case-law/blumenthal-chiropractic-p-c-v-praetorian-ins-2011-ny-slip-op-52386u/
- Decided
- December 23, 2011
- Citation
- 2011 NY Slip Op 52386(U) · 34 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- Discovery and procedure
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.
Reported in New York Official Reports at Blumenthal Chiropractic, P.C. v Praetorian Ins. (2011 NY Slip Op 52386(U))
| Blumenthal Chiropractic, P.C. v Praetorian Ins. |
| 2011 NY Slip Op 52386(U) [34 Misc 3d 135(A)] |
| Decided on December 23, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-2395 K C.
against
Praetorian Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
Plaintiffs commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated October 9, 2009, plaintiffs agreed to serve defendant with verified responses to its written discovery demands within 60 days of the date of the order or be precluded from offering evidence at trial. In January 2010, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiffs were precluded from offering any evidence at trial; and, therefore, that plaintiffs could not establish their prima facie case. In opposition, plaintiffs offered no excuse for their failure to comply with the so-ordered stipulation; rather, plaintiffs stated that they had served defendant with their responses in June [*2]2010. The Civil Court denied defendant’s motion finding that “there exists reasonable excuse for the delay in responding to defendant’s discovery demands i.e. change of attorneys handling this matter and the plaintiff [sic] should not be prejudiced due to changes in counsel.”
A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely 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]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiffs were required to demonstrate a reasonable excuse for their failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiffs failed to meet this burden. Although the Civil Court found that defendant’s change of attorney constituted a valid excuse, plaintiffs’ opposing affirmation made no reference to any change of attorney nor indicated how any such change of attorney excused its compliance. Accordingly, as the order of preclusion prevents plaintiffs from establishing their prima facie case, defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011
Cited by
A label shows how the later decision treated this one.
- Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 22119) FollowedAn insurer precluded from offering evidence at trial cannot use that evidence to obtain summary judgment.
- Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50673(U))A conditional discovery stipulation becomes absolute when a party fails to comply sufficiently and timely.
Similar decisions
- Boris Kleyman, P.C. v General Cas. Ins. Co. (2010 NY Slip Op 50992(U))A provider must show a reasonable excuse and a meritorious claim to avoid a conditional preclusion order made absolute by noncompliance.
- 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.
- 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.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.
- Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 51288(U))The provider's failure to comply with a signed discovery stipulation precluded proof of its claims and required striking the complaint.