July 9, 2007

Pelham Parkway Neuro & Diagnostic, P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 51336(U))

Headnote

The court considered the defendant's appeal from an order denying its motion to dismiss the complaint and granting the plaintiff's cross motion for summary judgement in the amount of $3,360.94 in an action to recover assigned first-party no-fault benefits. The main issue before the court was whether the drastic sanction of precluding the defendant from asserting its defense of exhaustion of policy limits was warranted, given the defendant's single failure to comply with the parties' discovery stipulation. The court held that the sanction was unwarranted in the absence of a showing that the defendant's failure to comply was willful and contumacious, and remanded the matter for further proceedings consistent with the decision. The court also directed the defendant to comply with all outstanding discovery relevant to the issue of exhaustion of policy limits.

Reported in New York Official Reports at Pelham Parkway Neuro & Diagnostic, P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 51336(U))

Pelham Parkway Neuro & Diagnostic, P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 51336(U)) [*1]

Pelham Parkway Neuro & Diagnostic, P.C. v Liberty Mut. Ins. Co.

2007 NY Slip Op 51336(U) [16 Misc 3d 130(A)]

Decided on July 9, 2007

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., DAVIS, KLEIN HEITLER, JJ
.

Pelham Parkway Neuro & Diagnostic, P.C. a/a/o Reinaldo Rivera Plaintiff-Respondent, No.570660/06 – –
against
Liberty Mutual Insurance Company,07-096 Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Larry S. Schachner, J.), entered April 3, 2006, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment in the principal sum of $3,360.94.

Per Curiam.

Order (Larry S. Schachner, J.), entered April 3, 2006, modified to deny plaintiff’s cross motion for summary judgment, and as modified, affirmed, without costs. The matter is remanded for further proceedings consistent with this decision.

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant’s single failure to comply with the parties’ discovery stipulation was willful and contumacious (see CPLR 3126; Villega v New York City Hous. Auth., 231 AD2d 404 [1996]). Since triable issues exists as to whether the policy limits had been exhausted at the time plaintiff submitted its claims, defendant is directed to comply with all outstanding discovery relevant to the issue of exhaustion of policy limits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 9, 2007