State Farm Indem. Co. v Yong Hua Lian

[*1] State Farm Indem. Co. v Yong Hua Lian 2009 NY Slip Op 50805(U) [23 Misc 3d 135(A)] Decided on April 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2008-117 Q C.

State Farm Indemnity Company a/s/o JOSEPH TAVANO, Respondent,

against

Yong Hua Lian, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated October 15, 2007. The order, insofar as appealed from, granted plaintiff's motion to compel disclosure, and granted defendant's cross motion to dismiss the complaint pursuant to CPLR 3126 only to the extent of conditionally dismissing the complaint in the event that plaintiff failed to comply with certain discovery demands within a specified period of time.

Appeal from so much of the order as granted that branch of plaintiff's motion to compel disclosure to the extent of directing plaintiff to produce its subrogor for an examination before trial dismissed as academic.

Order, insofar as reviewed, affirmed without costs.

The instant subrogation action was brought by plaintiff to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor. By "so-ordered"
(Denis Butler, J.) stipulation dated January 26, 2007, it was agreed, inter alia, that defendant would serve a notice of examination before trial (EBT) and notice of independent medical examination (IME) on plaintiff, and that the examinations of plaintiff's subrogor would take place within 30 days of plaintiff's receipt of said notices. While defendant subsequently served the aforementioned notices, no EBT or IME took place. Thereafter, plaintiff served a notice of EBT upon defendant, but defendant was not produced. Plaintiff then moved to compel disclosure, seeking, inter alia, an order compelling defendant's production for an EBT, compelling defendant to conduct the EBT and IME of plaintiff's subrogor, and extending its time to comply with other portions of the stipulation. Defendant cross-moved for dismissal of the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the terms of the stipulation and, pursuant thereto, was now precluded from offering evidence at trial. [*2]By order entered October 15, 2007, the Civil Court (Anna Culley, J.), inter alia, directed plaintiff to produce its subrogor for an EBT within 60 days, and produce him for an IME within 45 days thereafter, or the complaint would be dismissed, and directed defendant's production at an EBT within 60 days, or he would be precluded from testifying at trial. Defendant appeals from the order, contending that the motion court erred in failing to dismiss the complaint, thereby rejecting the terms of the "so-ordered" stipulation of January 26, 2007 and substituting its own order in its stead.

The parties concede that during the pendency of the appeal, the EBT of plaintiff's subrogor was conducted. Accordingly, the appeal from so much of the order as directed plaintiff to produce its subrogor for an EBT has been rendered academic.

With respect to the remaining portion of the order, we note that, contrary to the contention of defendant, the motion court did not violate the doctrine of law of the case by allegedly overruling the prior "so-ordered" stipulation and substituting its own order therefor. The doctrine of law of the case is not applicable to prior discovery orders (see e.g. Sullivan v Nigro, 48 AD3d 454 [2008]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A], 2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]). It is also noted that this court, as an appellate court, is not bound by the law of the case doctrine (see Latture v Smith, 304 AD2d 534 [2003]; see also Sunshine Care Corp.,19 Misc 3d 143[A], 2008 NY Slip Op 51101[U]). Accordingly, inasmuch as defendant raised no other objection to the remaining portion of the order, the order, insofar as reviewed, is affirmed.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 24, 2009