Audubon Physical Med & Rehab, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50374(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeals from orders of the Civil Court of the City of New York, Queens County, entered October 31, 2008 (Diane A. Lebedeff, J.) and February 23, 2009 (Anna Culley, J.). The order entered October 31, 2008 granted defendant’s motion to compel plaintiff to produce Drs. Livchits and Levin for depositions. The order entered February 23, 2009 granted defendant’s motion to dismiss the complaint based on plaintiff’s failure to comply with the October 31, 2008 order. The appeal from the February 23, 2009 order is deemed to be from a judgment of the same court entered February 26, 2009, which dismissed plaintiff’s complaint (see CPLR 5520 [c]).

ORDERED that the appeal from the order entered October 31, 2008 is dismissed; and it is further,

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant moved for an order compelling plaintiff to produce for depositions Dr. Levin, an owner of plaintiff, and Dr. Livchits, a physician associated with plaintiff who had allegedly treated plaintiff’s assignor. By order entered October 31, 2008, the Civil Court granted defendant’s motion and ordered plaintiff to produce Drs. Livchits and Levin for depositions within 60 days. The court further stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff must submit an affidavit to defendant so stating. Plaintiff appeals from this order. Thereafter, defendant moved to strike plaintiff’s complaint based on plaintiff’s failure to comply with the October 31, 2008 order. Plaintiff submitted opposition papers, in which it conceded that it had not produced a witness for a deposition. By order entered February 23, 2009, the Civil Court granted defendant’s motion to strike plaintiff’s complaint. Plaintiff also appeals from this order. The notice of appeal from the February 23, 2009 order is deemed to be a premature notice of appeal from the judgment entered on February 26, 2009 dismissing plaintiff’s complaint (see CPLR 5520 [c]). [*2]

The appeal from the order entered October 31, 2008 must be dismissed as the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

CPLR 3101 (a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party, or the officer, director, member, agent or employee of a party.” Consequently, the court properly ordered plaintiff to produce Drs. Livchits and Levin for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling discovery lie within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Zletz v Wetanson, 67 NY2d 711 [1986]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]). Although striking a pleading is a drastic remedy, it is appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467 [1997]). It can be inferred that a party’s conduct is willful and contumacious when the party repeatedly fails to comply with discovery demands and court orders compelling disclosure, without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484 [2008]; Dinstber v Geico Ins. Co., 32 AD3d 893 [2006]; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]). “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl, 94 NY2d at 123).

In the case at bar, plaintiff did not produce witnesses for depositions despite three motions by defendant seeking to compel plaintiff to produce such witnesses. Moreover, plaintiff failed to offer a reasonable excuse for failing to comply with the October 31, 2008 order compelling plaintiff to produce Drs. Livchits and Levin for depositions. Plaintiff belatedly stated that Dr. Livchits was no longer under its control and that it did not have to comply with the October 31, 2008 order because there was an appeal pending. However, in its order, the Civil Court specifically stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff need only provide an affidavit stating same. Not only did plaintiff not produce Drs. Livchits or Levin for depositions as required by the order, it failed to provide an affidavit stating that Dr. Livchits was no longer under its control and did not even offer a reason why it did not submit such affidavit. In addition, insofar as plaintiff asserts that it did not need to comply with the October 31, 2008 order because there was an appeal pending therefrom, since plaintiff did not move for a stay of the order pending the determination of the appeal, plaintiff was required to comply with the order (see generally Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s remaining contention lacks merit.

In light of the foregoing, we find that the Civil Court did not improvidently exercise its discretion in striking the complaint for plaintiff’s willful and contumacious failure to comply with the court’s order compelling depositions of Drs. Livchits and Levin.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 2010