July 31, 2009

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

https://www.beynensonlaw.com/case-law/great-wall-acupuncture-p-c-v-auto-one-ins-co-2009-ny-slip-op51733u/

Court
Appellate Term, Second Department
Decided
July 31, 2009
Citation
2009 NY Slip Op 51733(U) · 24 Misc 3d 142(A)
Posture
Other motion
Outcome
Split result
Issues
Discovery and procedure
Cite as
Great Wall Acupuncture, P.C. v Auto One Ins. Co., 24 Misc 3d 142(A), 2009 NY Slip Op 51733(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 insurer's cross motion to compel discovery was premature because it was made when the supplemental demand was served, before receipt. The provider had no opportunity to respond or object. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny that cross motion. It otherwise affirmed the conditional direction requiring the insurer to respond to the provider's demands within 60 days or face trial preclusion. Striking the insurer's answer under CPLR 3126 was unwarranted because the provider had not clearly shown willful, contumacious, or bad-faith noncompliance. The order had not compelled the provider's owner's deposition, and the provider's contention that the insurer was not entitled to that deposition lacked merit.

Reported in New York Official Reports at Great Wall Acupuncture, P.C. v Auto One Ins. Co. (2009 NY Slip Op 51733(U))

[*1]
Great Wall Acupuncture, P.C. v Auto One Ins. Co.
2009 NY Slip Op 51733(U) [24 Misc 3d 142(A)]
Decided on July 31, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1094 Q C.
Great Wall Acupuncture, P.C. a/a/o ROBERTO CRUZ and DIANA PEREZ, Appellant,

against

Auto One Insurance Company, Respondent.

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

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