October 11, 2011

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51837(U))

https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-auto-one-ins-co-2011-ny-slip-op51837u/

Court: Appellate Term, Second Department
Decided: October 11, 2011
Citation: 2011 NY Slip Op 51837(U) · 33 Misc 3d 127(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co., 33 Misc 3d 127(A), 2011 NY Slip Op 51837(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

A conditional preclusion order becomes absolute when a party fails to comply timely and sufficiently with its terms. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal of the complaint on the insurer's cross motion. The provider was directed to supply verified discovery responses within 60 days or be precluded from offering evidence at trial. It missed that deadline, and responses served after the cross motion were incomplete. To avoid preclusion, the provider had to demonstrate both a reasonable excuse and a meritorious cause of action, but failed to do so. Because the absolute preclusion order barred all trial evidence, dismissal was proper. The provider's remaining contentions were unpreserved or lacked merit.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51837(U))

[*1]

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co.

2011 NY Slip Op 51837(U) [33 Misc 3d 127(A)]

Decided on October 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1813 K C.

Viviane Etienne Medical Care, P.C. as Assignee of TELMO CARCHIPULLA, Appellant,
against
Auto One Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards), entered June 18, 2009. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint due to plaintiff’s failure to respond to defendant’s discovery requests. By order entered July 16, 2008, the Civil Court granted defendant’s motion to the extent of directing plaintiff to provide verified responses to defendant’s discovery demands within 60 days or be precluded from offering evidence at trial. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint on the ground that plaintiff had failed to comply with the July 16, 2008 order. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Plaintiff failed to serve responses to the demands within the 60-day period provided for in the Civil Court’s order of July 16, 2008. Moreover, the responses which plaintiff served after defendant had made its cross motion were incomplete. A conditional order of preclusion becomes absolute upon a party’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the order and the existence of a meritorious cause of action (see Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 [*2]AD3d at 908). Plaintiff failed to meet this burden. As the preclusion order became absolute, plaintiff is unable to offer any evidence at trial in this action. Consequently, the Civil Court properly granted defendant’s cross motion to dismiss the complaint.

Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011

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