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Park Slope Med & Diagnostic, P.C. v Travelers Indem. Co.
2006 NY Slip Op 50371(U) [11 Misc 3d 133(A)]
Decided on March 14, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 14, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Suarez, P.J., McCooe, Schoenfeld, JJ
570018/05.

Park Slope Med and Diagnostic, P.C., as Assignee of Oleg Khabiyev, Plaintiff-Respondent,

against

Travelers Indemnity Company, Defendant-Appellant.


Defendant appeals from an order of the Civil Court, Bronx County (Raul Cruz, J.), dated October 27, 2004,


which denied its motion to strike plaintiff's complaint pursuant to CPLR 3126 and granted a conditional order of preclusion, directing plaintiff to respond to written interrogatories.
PER CURIAM:

Order (Raul Cruz, J.), dated October 27, 2004, affirmed, with $10 costs.

The plaintiff's isolated discovery default in failing to have its assignor's treating physician appear for a scheduled deposition in February 2001 did not constitute a pattern of noncompliance or reflect willful or contumacious conduct (see Fraracci v Lasouska, 283 AD2d 735 [2001]). Significantly, defendant did not take any further action or seek court relief on its discovery demand for more than three years. In the circumstances, we agree that the ultimate sanction of dismissal of the complaint is unwarranted (compare McDonald v Lengel, 1 AD3d 774 [2003]).

This constitutes the decision and order of the court.
Decision Date: March 14, 2006