September 14, 2007
AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))
Headnote
Reported in New York Official Reports at AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))
| AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2007 NY Slip Op 51756(U) [16 Misc 3d 138(A)] |
| Decided on September 14, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 4, 2011; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-927 K C.
against
State Farm Mutual Automobile Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.
Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.
Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands.
Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126 (3) due to plaintiff’s failure to respond to defendant’s discovery demands or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.
Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is [*2]a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its failure to respond to defendant’s discovery demands and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007