Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))

Midisland Med., PLLC v NY Cent. Mut. Ins. Co.

2010 NY Slip Op 50993(U) [27 Misc 3d 141(A)]

Decided on June 4, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Midisland Medical, PLLC a/a/o JEAN CARTER and JEANNETTE CARTER, Appellant,

against

NY Central Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant's motion for summary judgment, dismissed the complaint.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 13, 2006, plaintiff was required "to serve full and complete responses" to defendant's discovery demands by a specified date or be precluded from offering such evidence at trial.

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Consequently, defendant moved for summary judgment dismissing plaintiff's complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant's motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff's failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented plaintiff from making out a prima facie case, the Civil Court properly granted defendant's motion for summary judgment. Accordingly, the judgment is affirmed.