July 10, 2008

Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))

https://www.beynensonlaw.com/case-law/downtown-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2008-ny-slip-op51552u/

Court
Appellate Term, Second Department
Decided
July 10, 2008
Citation
2008 NY Slip Op 51552(U) · 20 Misc 3d 137(A)
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Declaratory judgment, res judicata Discovery and procedure
Cite as
Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 137(A), 2008 NY Slip Op 51552(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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.

The provider's prior discovery dismissal did not bar a second action because it did not constitute a determination on the merits. The insurer sought summary judgment on res judicata grounds after an identical action was dismissed under CPLR 3126 (3) for noncompliance with a so-ordered discovery stipulation. Applying Maitland v Trojan Elec. & Mach. Co., the court found that the noncompliance had not resulted in dismissal with prejudice, preclusion, or summary judgment effectively closing the provider's proof. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, allowing the provider's second action to proceed.

Reported in New York Official Reports at Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))

[*1]
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 10, 2008

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.
Downtown Acupuncture, P.C. a/a/o LUIS CADMEN, Respondent,

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

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