July 10, 2008
Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))
Headnote
Reported in New York Official Reports at Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))
| Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2008 NY Slip Op 51552(U) [20 Misc 3d 137(A)] |
| Decided on July 10, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-941 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 (Richard Velasquez, J.), entered April 20, 2007. The order denied defendant’s motion for summary judgment.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved
for summary judgment dismissing the complaint on the ground of res judicata. Defendant argued
that plaintiff had previously commenced an identical action, which was dismissed pursuant to
CPLR 3126 (3) for plaintiff’s failure to comply with a
so-ordered discovery stipulation. Plaintiff asserted that the action was proper since the
prior action was not dismissed with prejudice. The court below denied defendant’s motion. The
instant appeal by defendant ensued.
“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with
prejudice, or an order of preclusion or summary judgment in favor of defendant so as to
effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits
determination so as to bar commencement of a second action” (Maitland v Trojan Elec. &
Mach. Co., 65 NY2d 614, 615-616 [1985]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706,
707 [2006]). In the case at bar, plaintiff’s prior action was [*2]dismissed after the court below granted defendant’s motion to strike
the complaint pursuant to CPLR 3126 (3). Since plaintiff’s noncompliance did not “result in a
dismissal with prejudice, or an order of preclusion or summary judgment,” plaintiff was not
barred from commencing a second action (see Maitland, 65 NY2d at 615-616;
Daluise, 40 AD3d at 802). Accordingly, the court below properly denied defendant’s
motion for summary judgment dismissing the
complaint based on the doctrine of res judicata (cf. First Help Acupuncture,
P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op 51266[U] [App
Term, 2d & 11th Jud Dists 2008] [so-ordered stipulation concerning discovery provided that a
failure to provide the discovery would result in preclusion]).
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008