April 9, 2010

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

Headnote

The court considered the fact that the plaintiff, Nordique Medical Services, P.C., failed to comply with a conditional order of preclusion by not serving complete responses to the defendant's discovery demands within the required 45 days. The main issue decided was whether the plaintiff should be precluded from offering any evidence in any subsequent motion or at trial as a result of their failure to comply with the conditional order of preclusion. The holding of the case was that the conditional order of preclusion became absolute upon the plaintiff's failure to comply, and the plaintiff was required to demonstrate an excusable default and a meritorious cause of action in order to avoid the adverse impact of the conditional order of preclusion. Since the plaintiff failed to do so, they were precluded from establishing a prima facie case, and the defendant's motion for summary judgment dismissing the complaint was granted.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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