April 9, 2010

Nordique Med. Servs., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50648(U))

https://www.beynensonlaw.com/case-law/nordique-med-servs-p-c-v-travelers-ins-co-2010-ny-slip-op50648u/

Court: Appellate Term, Second Department
Decided: April 9, 2010
Citation: 2010 NY Slip Op 50648(U) · 27 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Discovery and procedure Defaults and vacatur

Cite as

Nordique Med. Servs., P.C. v Travelers Ins. Co., 27 Misc 3d 131(A), 2010 NY Slip Op 50648(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 failure to comply with a conditional preclusion order barred its prima facie proof and required dismissal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint. The provider did not serve complete discovery responses within the required 45 days, causing the conditional order to become absolute. That order precluded the provider from offering evidence on subsequent motions or at trial. To avoid its effect, the provider had to demonstrate both an excusable default and a meritorious cause of action. Because it failed to make that showing, it could not establish a prima facie case.

Reported in New York Official Reports at Nordique Med. Servs., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50648(U))

[*1]

Nordique Med. Servs., P.C. v Travelers Ins. Co.

2010 NY Slip Op 50648(U) [27 Misc 3d 131(A)]

Decided on April 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 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
2008-2052 Q C.

Nordique Medical Services, P.C. as assignee of MARGIE KOHN, 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 conditional order of preclusion 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 conditional order of preclusion 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 09, 2010

Similar decisions

Kimball Med., P.C. v Travelers Ins. Co. (2010 NY Slip Op 50639(U))The provider's failure to comply with a so-ordered discovery stipulation made its conditional evidentiary preclusion absolute.
Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))A conditional preclusion order becomes absolute when a provider fails to comply sufficiently and timely with its discovery requirements.
Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 51288(U))The provider's failure to comply with a signed discovery stipulation precluded proof of its claims and required striking the complaint.
Boris Kleyman, P.C. v General Cas. Ins. Co. (2010 NY Slip Op 50992(U))A provider must show a reasonable excuse and a meritorious claim to avoid a conditional preclusion order made absolute by noncompliance.
Viviane Etienne Med. Care, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51837(U))A conditional preclusion order becomes absolute when a party fails to comply timely and sufficiently with its terms.