A.M. Med. Servs., P.C. v GEICO Ins. Co. (2009 NY Slip Op 51029(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 19, 2005, deemed from a judgment of the same court entered April 9, 2008 (see CPLR 5512 [a]). The judgment, entered pursuant to the December 19, 2005 order granting defendant’s cross motion to strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to comply with a so-ordered stipulation, dismissed the complaint.

Judgment reversed without costs, so much of the order entered December 19, 2005 as granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 vacated and defendant’s cross motion denied.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a “so-ordered” stipulation in November 2003, which, insofar as is relevant, states:
“Plaintiff . . . will appear for examination before trial (EBT) on or before 60 (sixty) days from today’s date. January 16, 2004.
In the event that plaintiff fails to appear for said examination or fails to produce someone with personal knowledge as to the medical necessity of the services provided (if so required) plaintiff will be precluded from offering evidence at trial.” [*2]
Thereafter, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved, pursuant to CPLR 3126, for an order striking the complaint and dismissing the action with prejudice due to plaintiff’s failure to appear for an EBT on or before January 16, 2004. In opposition to defendant’s cross motion, plaintiff argued that defendant’s cross motion was untimely and that defendant failed to establish that plaintiff breached the so-ordered stipulation because defendant did not demonstrate that the EBT was ever scheduled. The Civil Court granted defendant’s cross motion, dismissed the action, and denied plaintiff’s motion as moot. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion. A judgment dismissing the action was subsequently entered, from which we deem the appeal (see CPLR 5512 [a]).

While defendant’s cross motion was served 16 days later than the date the court fixed for service of said cross motion, it was served more than 4 months before the motion and cross motion were returnable and plaintiff submitted papers in opposition to the cross motion. Consequently, the Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion since plaintiff did not demonstrate that it suffered any prejudice as a result of defendant’s delay (see e.g. Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).

In the case at bar, the so-ordered stipulation did not schedule plaintiff’s EBT for January 16, 2004. Rather, it directed plaintiff to appear for an EBT on or before January 16, 2004. Defendant, however, did not show that plaintiff failed to comply with the stipulation since defendant failed to establish that an EBT of plaintiff was scheduled for January 16, 2004, or any other date, for which plaintiff failed to appear. Consequently, defendant’s cross motion should have been denied. Accordingly, the judgment is reversed, and defendant’s cross motion to strike the complaint is denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment in the following memorandum.

In the first instance, it should be noted that the stipulation in question was not written in a vacuum. It was entered into by both parties, who were represented by counsel, and with the approval of the Civil Court only after plaintiff had failed to appear for a deposition on at least two prior separate occasions.

This stipulation between the parties was not only entered into with the approval of the Civil Court, but was converted into a judicial fiat upon being so ordered” by that court. It is of no less merit than any other order that was drafted and signed by a judge without any input from the parties. This so-ordered” stipulation had the full force and effect of a conditional order of preclusion (see State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]). Consequently, plaintiff’s failure to comply should result in a final order of preclusion and therefore dismissal. It is important, at this juncture, to understand that defendant was presumptively entitled to a final order of preclusion at the time this stipulation was entered into. [*3]Plaintiff had already failed to appear on two different occasions to submit to a deposition. It was therefore only as a result of this so-ordered” stipulation that the court agreed to issue a conditional order of preclusion. The condition fell solely upon the plaintiff to take some action to avoid a final preclusion.

Despite this clear mandate, the majority finds that it is defendant’s obligation to establish more than the simple fact that the final date had passed and plaintiff failed to appear for a deposition, a proposition equivalent to the requirement that a plaintiff in a no-fault case need only establish that a claim was filed and remains unpaid after 30 days.

Had this plaintiff responded by asserting that it had contacted defendant in a good faith attempt to comply but was ignored or rebuffed, then defendant could not be shielded behind this conditional order of preclusion. That was not done herein, nor did plaintiff deem it necessary to inform the court that it was unable to comply with the court’s order due to the inaction of defendant. Instead, when faced with a conditional order of preclusion, plaintiff chose to do nothing at all. More than a year later, plaintiff moved for summary judgment without ever bothering to affirmatively address its violation of an existing court order.

Plaintiff’s counsel’s lackadaisical approach completely discounts his client’s failure to comply with the Civil Court’s order. Plaintiff’s counsel states that the only notation in his file is that there is no notice whatsoever from defense counsel looking for the fruits of their ebt motion victory from back in the fall of 2003.” This is indeed a rather strange notation to be contained in a file. Counsel then strikes a conciliatory note to his adversary while being dismissive of the court and its orders. He states, I respectfully submit that both of the law offices of the sides now before this court are simply too high volume, too busy, and employ too many people, to permit for the assertion of no confirmation to a phone call’ be held as violating a court order.”

If that be so, then counsel should be aware of his ethical obligation to accept only those cases for which his office is capable of providing adequate representation. In any event, I find that plaintiff’s total failure to do anything to comply with the so-ordered” stipulation is what constitutes a violation of the clear intent of that stipulation and mandates preclusion in compliance with the Civil Court’s order.
Decision Date: May 22, 2009