April 8, 2010

Kimball Med., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50639(U))

Headnote

The relevant facts considered in this case include a provider's failure to serve complete responses to the defendant's discovery demands within the required 45 days, as stipulated in a so-ordered stipulation. This stipulation included the provision that if the provider failed to comply, they would be precluded from offering any evidence in any subsequent motion or at trial. The main issue decided in this case was whether the provider's failure to comply with the stipulation constituted a conditional order of preclusion, which became absolute upon the provider's failure to comply. The holding of the court was that the so-ordered stipulation did constitute a conditional order of preclusion, and since the provider failed to demonstrate an excusable default and a meritorious cause of action, they were precluded from establishing a prima facie case. As a result, the court granted the defendant's motion for summary judgment, dismissing the complaint.

Reported in New York Official Reports at Kimball Med., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50639(U))

Kimball Med., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50639(U)) [*1]

Kimball Med., P.C. v Travelers Ins. Co.

2010 NY Slip Op 50639(U) [27 Misc 3d 130(A)]

Decided on April 8, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-2046 Q C.

Kimball Medical, P.C. as assignee of ALEXANDRA GONZALEZ, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered October 22, 2008. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a conditional order of preclusion.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff failed to serve complete responses to defendant’s discovery demands within 45 days, as required by a so-ordered stipulation which, among other things, provided that if plaintiff failed to do so, plaintiff would be precluded from offering any evidence in any subsequent motion or at trial. As a result, the so-ordered stipulation was a conditional order of preclusion, which became absolute upon plaintiff’s failure to comply (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Calder v Cofta, 49 AD3d 484 [2008]; Callaghan v Curtis, 48 AD3d 501 [2008]; Michaud v City of New York, 242 AD2d 369 [1997]; Saavedra v Aiken, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In order to avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate an excusable default and a meritorious cause of action (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud at 370). Since plaintiff failed to do so, plaintiff is precluded from establishing a prima facie case. Accordingly, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud, 242 AD2d 369; Saavedra, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 08, 2010