SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted so much of defendant’s motion for discovery as related to plaintiff’s current corporate status.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking discovery related to plaintiff’s current corporate status is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant moved to, among other things, compel plaintiff to provide discovery. The Civil Court, insofar as is relevant to this appeal, denied plaintiff’s motion for summary judgment on the ground that plaintiff had failed to demonstrate its prima facie entitlement to judgment as a matter of law, and granted the branch of defendant’s motion seeking to compel plaintiff to provide discovery regarding plaintiff’s “current legal/corporate status.”

A no-fault provider establishes its prima facie entitlement to summary judgment by proof [*2]of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In this case, the Civil Court found, among other things, that plaintiff had failed to establish its prima facie entitlement to summary judgment. As plaintiff does not address that finding on appeal, we decline to disturb the Civil Court’s denial of plaintiff’s motion for summary judgment.

We further find that defendant has not demonstrated that discovery on the issue of plaintiff’s current corporate status is material and necessary to its defense of this action (see CPLR 3101). Plaintiff, as a “professional service limited liability company” (Limited Liability Company Law § 1201 [f]), could render professional services only through individuals authorized by law to render such professional services (Limited Liability Company Law § 1204 [a]). The medical license of plaintiff’s sole member, Alexander Braver, was suspended in 2007, rendering him legally disqualified from practicing medicine within the state and disqualifying him from continuing as a member of plaintiff (see Limited Liability Company Law § 1209). Dissolution occurred on the effective date of the suspension of Braver’s medical license since, at that point, there were no remaining members of the professional service limited liability company (see Limited Liability Company Law § 701 [a] [4] [a “limited liability company is dissolved and its affairs shall be wound up . . . at any time there are no members”]). Since Braver was the sole member of such company, he may wind up the professional service limited liability company’s affairs by, among other things, prosecuting and/or defending an action on behalf of the professional service limited liability company (see A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]).

In view of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking discovery related to plaintiff’s current corporate status is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 16, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint based on a finding that defendant had failed to establish that plaintiff did not comply with defendant’s requests for verification.

Contrary to plaintiff’s contention, the affidavit of defendant’s litigation examiner, submitted in support of defendant’s motion, established that defendant had timely mailed its requests and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to provide the MRI films which, among other things, defendant’s requests for verification had sought. As plaintiff’s opposing papers failed to address defendant’s requests for the assignor’s MRI films, plaintiff did not demonstrate that it had provided defendant, prior to commencement of the action, with the verification requested. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not commence to run and plaintiff’s action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2010. The order denied defendant’s motion to vacate a default judgment and dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment and dismiss the complaint is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment and dismiss the complaint.

It is “axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755 [2006], quoting McMullen v Arnone, 79 AD2d 496, 499 [1981] [internal quotation marks omitted]; see Matter of Cartier v County of Nassau, 281 AD2d 477, 478 [2001]). Under CPLR 5015 (a) (4), a default judgment must be vacated once a movant demonstrates a lack of personal jurisdiction (see Citibank v Keller, 133 AD2d 63, 64-65 [1987]; see also Harkless v Reid, 23 AD3d 622, 622-623 [2005]; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]). Here, the process server served the summons and complaint upon a clerk employed by defendant’s third-party claims administrator, and the record is devoid of any showing that he was an officer, director, managing agent, cashier, or an agent authorized by appointment to accept service on defendant’s behalf (see CPLR 311 [a] [1]; Covillion v Tri State Serv. Co., Inc., 48 AD3d 399, 400 [2008]; Gleizer v American Airlines, Inc., 30 AD3d 376 [2006]).

Accordingly, the Civil Court never obtained jurisdiction over defendant and should have granted defendant’s motion to vacate the default judgment and dismiss the complaint.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 18, 2009, deemed from a judgment of the same court entered February 18, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 18, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $568.10.

ORDERED that the judgment is reversed, without costs, the order entered December 18, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had properly reimbursed plaintiff for services rendered by plaintiff’s licensed acupuncturist to plaintiff’s assignor. By order dated December 18, 2009, the Civil Court granted plaintiff’s motion for summary judgment, awarding plaintiff the principal sum of $568.10, and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant filed a notice of appeal from the order. A judgment awarding plaintiff the principal sum of $568.10 was subsequently entered on February 18, 2010, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Subsequent to the entry of the judgment, plaintiff, upon discovering a mathematical error, plaintiff moved to reduce the sum awarded in the December 18, 2009 order to $169.24. By order entered April 28, 2010, the Civil Court (Carmen R. Velasquez, J.) granted that motion. Contrary to plaintiff’s contention on appeal, the entry of the April 28, 2010 order did not affect the appeal from the judgment, which was entered pursuant to the December 18, 2009 order, and has not been amended. We note that the April 28, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court’s findings of liability as a matter of law, which are the subject of defendant’s appeal. [*2]

We find that defendant’s cross motion for summary judgment dismissing the complaint should have been granted, as it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party’s attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.

Accordingly, the judgment is reversed, the order entered December 18, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 8, 2009. The order denied the branch of plaintiff’s motion seeking leave to enter a default judgment and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) is treated as an application for leave to appeal from that portion of the order, and leave to appeal
is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

In February 2006, plaintiff commenced this action to recover assigned first-party no-fault benefits in the sum of $1,181.63. Defendant failed to timely appear and answer. In January 2009, plaintiff moved for, among other things, leave to enter a default judgment. By order entered July 8, 2009, the Civil Court denied that branch of plaintiff’s motion and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (CPLR 3215 [c]; CCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In this case, plaintiff admittedly failed to move for leave to enter a default judgment within one year of the default and did not proffer any reasonable excuse for its delay. Further, contrary to plaintiff’s contention, the Civil Court was under no
obligation to notify plaintiff that it intended to “dismiss the complaint as abandoned . . . upon its own initiative” (CPLR 3215 [c]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

In light of the foregoing and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it issued timely denials,” a finding which plaintiff does not dispute, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,078.48.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that the sole issue to be litigated would be whether the services rendered to plaintiff’s assignor were medically necessary. At a nonjury trial, the Civil Court granted plaintiff’s motion to preclude the testimony of defendant’s witness, the psychologist who had prepared the peer review report upon which defendant’s claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48.

In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying (see Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept 2007]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Accordingly, the judgment is reversed and the matter is remitted for a new trial.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 21, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that “[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted.” By order entered March 2, 2004, plaintiff’s motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant’s discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant’s motion seeking to vacate the default judgment and denied the branch of defendant’s motion seeking to dismiss the complaint. This appeal by defendant ensued.

Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant’s conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Sutter v Rosenbaum, 166 AD2d 644, 645 [1990]; Myers v Slutsky, 139 AD2d 709, 710 [1988]). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant’s motion seeking to dismiss the complaint as abandoned.
Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

[*1]

Supreme Court, Appellate Term, Second Department, July 8, 2011

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Amos Weinberg, Great Neck, for respondents.

{**32 Misc 3d at 64} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiffs’ motion seeking an order, pursuant to CPLR 3212 (g), deeming certain facts established for all purposes in the action is denied.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had failed to establish their prima facie case. On appeal, this court affirmed the order, stating that, while plaintiffs had established their prima facie entitlement to summary judgment, defendant had demonstrated that there was a triable issue of fact (A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51859[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiffs then moved in the Civil Court for, among other things, an order, pursuant to CPLR 3212 (g), deeming the facts necessary to demonstrate plaintiffs’ prima facie case established for all purposes in the action, arguing that they were entitled to such relief in light of this court’s prior determination that plaintiffs had established their prima facie case but that defendant’s papers were sufficient to raise a triable issue of fact. The Civil Court granted this branch of plaintiffs’ motion, and defendant appeals.

An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court’s finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing{**32 Misc 3d at 65} party to raise a triable issue of fact, just as a court’s “denial of a motion [*2]for summary judgment establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY Prac § 287, at 487 [5th ed]).

In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff’s case. It follows, then, that there is nothing in this court’s order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs’ case. As a result, the Civil Court improperly relied upon this court’s prior order in limiting the issues for trial pursuant to CPLR 3212 (g).

Accordingly, so much of the order as granted the branch of the motion seeking relief pursuant to CPLR 3212 (g) is reversed, and said branch of the motion is denied.

Steinhardt, J.P., Golia and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009. The order, insofar as appealed from, denied, as premature, plaintiff’s cross motion for summary judgment and granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar and the branch of defendant’s motion seeking to dismiss the complaint due to plaintiff’s failure to comply with discovery demands or to compel such discovery, to the extent of directing plaintiff to respond to defendant’s discovery demands.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered December 11, 2008, denied a motion by plaintiff for summary judgment as premature and granted a cross motion by defendant to the extent of compelling plaintiff to comply with defendant’s discovery demands within 30 days of service of the order with notice of entry. Although defendant served the order with notice of entry on January 5, 2009, two days later, on January 7, 2009, plaintiff filed a notice of trial and certificate of readiness, which it mailed to defendant on January 27, 2009. Defendant timely moved, among other things, to vacate the notice of trial and strike the action from the trial calendar, to compel plaintiff to meaningfully respond to its discovery demands, and to produce plaintiff’s purported owners for an examination before trial. Plaintiff cross-moved for summary judgment. By order entered September 10, 2009, the Civil Court denied, as premature, plaintiff’s cross motion for summary judgment and granted defendant’s motion to the extent of vacating the notice of trial and striking the matter from the trial calendar, and directing plaintiff to provide defendant with “written discovery including answering verified written interrogatories and combined demands (such as tax returns and management/lease agreements).” The order further directed plaintiff to produce its owners for an examination before trial within 45 days after service of the written discovery. This appeal by plaintiff ensued, and we affirm.

It is undisputed that the discovery demanded was not provided by plaintiff. Because the [*2]notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar (see Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As discovery was outstanding, the Civil Court also properly denied, as premature, plaintiff’s cross motion for summary judgment. Moreover, since the record indicates that plaintiff made no attempt in the Civil Court to challenge the propriety of defendant’s discovery demands (see CPLR 3103, 3122 [a]; 3133 [a]), plaintiff must comply with the Civil Court’s direction that it provide responses to defendant’s discovery demands.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2011