Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 50874(U))

Decided on May 22, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 13, 2011. The order denied plaintiff’s motion for an order of preclusion.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for an order of preclusion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation, dated February 14, 2011, pursuant to which defendant was to serve responses to plaintiff’s discovery demands within 30 days or be “precluded from offering items that were requested by plaintiff in its discovery demands, but were not provided by defendant, in this action.” By notice of motion dated April 18, 2011, plaintiff moved for an order of preclusion, alleging that defendant had failed to comply with the discovery stipulation. On June 22, 2011, the parties stipulated to adjourn the motion until December 13, 2011, and that opposition to the motion was to be served by October 13, 2011. Defendant did not submit written opposition to the motion. Nevertheless, the Civil Court denied plaintiff’s motion, stating that “respondent served discovery responses in May 2011.”

Plaintiff established that discovery responses had not been served within the stipulated time period, and defendant failed to submit written opposition to plaintiff’s motion either within the stipulated time frame for the service of opposition papers, or at all. Under these circumstances, plaintiff’s motion should have been granted.

Accordingly, the order is reversed and plaintiff’s motion for an order of preclusion is granted.

Weston, J.P., Aliotta and Solomon, JJ., concur.