June 4, 2010
Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))
https://www.beynensonlaw.com/case-law/midisland-med-pllc-v-ny-cent-mut-ins-co-2010-ny-slip-op50993u/
- Decided
- June 4, 2010
- Citation
- 2010 NY Slip Op 50993(U) · 27 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 1 later decision (see Cited by)
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 Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))
| Midisland Med., PLLC v NY Cent. Mut. Ins. Co. |
| 2010 NY Slip Op 50993(U) [27 Misc 3d 141(A)] |
| Decided on June 4, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : GOLIA, J.P., PESCE and RIOS, JJ
2009-610 Q C.
against
NY Central Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed without costs.
Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 13, 2006, plaintiff was required “to serve full and complete responses” to defendant’s discovery demands by a specified date or be precluded from offering such evidence at trial.
It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Consequently, defendant moved for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501).
The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’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 [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 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). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.
Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010
Cited by
A label shows how the later decision treated this one.
- A.M. Med., P.C. v General Assur. Co. (2012 NY Slip Op 51272(U)) Contrasted (cf., but see)The insurer's discovery responses, at most four days late, substantially complied with the parties' stipulation and did not warrant preclusion.
- Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co. (2013 NY Slip Op 51441(U))A discovery order precluding an insurer from offering trial evidence does not bar res judicata effect for a default declaratory judgment.
- 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.
- 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.
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.
- Colonia Med., P.C. v Liberty Mut. Fire Ins. Co. (2011 NY Slip Op 52283(U))The provider failed to establish prima facie entitlement to summary judgment despite the insurer's preclusion from offering evidence.
- 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.
- Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))The insurer failed to raise a triable issue on its IME no-show defense because it lacked an affidavit based on personal knowledge.
- 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.