Great Wall Acupuncture, P.C. v Auto One Ins. Co. (2009 NY Slip Op 51733(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 3, 2008. The order, insofar as appealed from, (1) granted plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126 only to the extent of directing defendant to respond to plaintiff’s demand for written interrogatories and for discovery and inspection within 60 days of the date of the order or be precluded from offering or soliciting evidence at trial; (2) granted defendant’s cross motion, which sought to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition and to provide discovery, to the extent of directing plaintiff to respond to items 1-3, 6, 8, 10, 11 and 14 of defendant’s supplemental demand for discovery and inspection, and (3) stated that defendant “reserves [its] right to re-notice owner for EBT.”

Order, insofar as appealed from, modified by providing that defendant’s cross motion to compel discovery is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126 to the extent of compelling defendant to respond to plaintiff’s demands for written interrogatories and for discovery and inspection within 60 days or be precluded from offering or soliciting evidence at trial. The court also granted defendant’s cross motion to compel a deposition and responses to discovery demands to the extent of compelling plaintiff to respond to items 1-3, 6, 8, 10, 11 and 14 of defendant’s supplemental demand for discovery and inspection. The court further stated that defendant “reserves [its] right to re-notice owner for EBT.”

Although plaintiff contends that the court erred when it failed to strike defendant’s answer due to defendant’s failure to provide responses to plaintiff’s discovery demands, “striking [a [*2]pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Conciatori v Port Auth. of NY & N.J., 46 AD3d 501, 504 [2007]; see Espinal v City of New York, 264 AD2d 806 [1999]). In our view, plaintiff failed to make such a “clear showing” (Conciatori, 46 AD3d at 504). Accordingly, contrary to plaintiff’s contention, the record does not support “the extreme relief requested by the plaintiff[]” (id.).

However, plaintiff correctly argues that the Civil Court erred when it ordered plaintiff to respond to specified items set forth in defendant’s supplemental demand for discovery and inspection. By cross-moving to compel responses to its supplemental demand for discovery and inspection on the same day as it served said supplemental demand, defendant failed to give plaintiff an opportunity to respond to the supplemental demand or to object thereto. Indeed, defendant cross-moved before plaintiff even received the supplemental demand. As a result, defendant’s cross motion should have been denied as premature (see Sagiv v Gamache, 26 AD3d 368 [2006]).

Plaintiff further argues that defendant is not entitled to a deposition of plaintiff’s owner, Valentina Anikeyeva. We note that the Civil Court did not compel plaintiff to produce her for a deposition. In any event, under the facts of this case, such a contention lacks merit (Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 31, 2009