Astoria Wellness Med., P.C. v Autoone Ins. Co.

[*1] Astoria Wellness Med., P.C. v Autoone Ins. Co. 2012 NY Slip Op 50340(U) Decided on February 21, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., WESTON and GOLIA, JJ
. -x

Astoria Wellness Medical, P.C. as Assignee of MERABI TSERETELI, Appellant,

against

Autoone Ins. Co., Respondent. -x

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 17, 2009. The order, upon an amended cross motion by defendant for, among other things, leave to amend its answer and to direct plaintiff "to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same," granted defendant leave to amend its answer and directed that "the plaintiff shall provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer."

ORDERED that the order is modified by striking so much of the order as directs that "the plaintiff shall provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer" and by providing that the branch of defendant's cross motion seeking to direct disclosure is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, by an amended cross motion, defendant cross-moved for, among other things, leave to amend its answer to assert the additional affirmative defense to the effect that plaintiff was not entitled to receive no-fault benefits because it failed to comply with applicable state or local licensing laws. Defendant's cross motion also sought an order, pursuant to CPLR 3104, directing plaintiff "to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same." By order dated November 18, 2009, the Civil Court denied plaintiff's motion. By order entered December 17, 2009, the Civil Court granted the branch of defendant's amended cross motion seeking to amend the answer and directed plaintiff to "provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer."

Leave to amend pleadings should be freely granted absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 225 [2008]; see also Worthen-Caldwell v Special Touch Home Care Servs., Inc., 78 AD3d 822 [2010]). As plaintiff was neither prejudiced nor surprised by defendant's delay in asserting the foregoing affirmative [*2]defense, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant's amended cross motion seeking leave to amend its answer (see e.g. New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52217[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

A review of the record indicates that defendant's initial discovery demands had not requested any "management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records," and were merely comprised of a "Demand for Disclosure of Witness(es)," a "Notice Pursuant to CPLR 3101" for, among other things, the identities of expert witnesses intended to be called at trial, and a "Declination of Service by Electronic Means." Since defendant had not served any supplemental discovery demands upon plaintiff prior to making its cross motion, and did not submit any proposed supplemental discovery demands with its cross motion, so much of the order as states that "the plaintiff shall provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer" is stricken.

We note that, contrary to plaintiff's contention, there is no requirement that a CPLR 321 change or withdrawal of attorney form be notarized. We further note that nothing in our decision herein is intended to preclude defendant from serving supplemental discovery demands.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: February 21, 2012