Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co.

[*1] Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co. 2015 NY Slip Op 50673(U) Decided on May 1, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-2730 Q C

Velocity Chiropractic, P.C. as Assignee of JOSHUA FUENTES, Respondent,

against

Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 26, 2012. The order, insofar as appealed from, denied defendant's motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, on June 22, 2012, the parties entered into a so-ordered stipulation pursuant to which

plaintiff agreed to serve defendant with verified responses to defendant's written discovery demands within 80 days of the date of the order or be precluded from offering such evidence. After plaintiff failed to provide the so-ordered discovery responses, defendant moved pursuant to CPLR 3126 to strike the complaint and dismiss the action, asserting that plaintiff had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiff was precluded from offering any evidence; and that, therefore, plaintiff could not establish its prima facie case. In opposition, plaintiff admitted that its responses had been served late but asserted that the delay was due to law office failure and that defendant was not prejudiced by the delay. The Civil Court denied defendant's motion, stating that it was preferable to resolve the case on the merits and holding that the accrual of interest was tolled during the time period in which plaintiff's so-ordered discovery responses were untimely.

A conditional so-ordered stipulation becomes absolute upon a party'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, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiff was required to demonstrate a reasonable excuse for its 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). We find that plaintiff failed to meet this burden. Plaintiff's opposing affirmation made no attempt to demonstrate the existence of a meritorious cause of action and failed to present sufficient facts to establish a reasonable excuse for its failure to [*2]comply with the so-ordered stipulation. Accordingly, as the order of preclusion prevents plaintiff from establishing its prima facie case, the order is reversed and defendant's motion to strike the complaint and dismiss the action is granted.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 01, 2015