Kemper Independence Ins. Co. v Wert

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Kemper Independence Ins. Co. v Wert 2012 NY Slip Op 31195(U) April 25, 2012 Supreme Court, New York County Docket Number: 100160/10 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 51712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - Index Number: 100160/2010 KEMPER INDEPENDENCE INS. CO. vs. WERT, SANFORD SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTlON 9EQ. NO. - STRIKE ANSWER The followlng paperr, numbered I to ,were read on thlr motlon tolfor N o t i c e of MotlonlOrderto Show Caure -AffldavlG - Exhlblta Aniwsrlng Affldavlta IN O W . - Exhlbltm t I, Replylng AffldavlG FILED MAY 07 2012 I CHECK ONE: . ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ 0 CASE DISPOSED DENIED 0GRANTED [7 SETTLE ORDER DO NOT POST $ NON-FINAL DlSPOSlflON I 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME IRT F T [E ST TE OF NEW YORK COUNTY OF NEW YORK: IAS PART 11 X - - - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ * KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff, Index No. 10016O/'rO -against- FILEQ SANFORD WERT, SANFORD WERT, M.D., ET AL, Defendants. - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ _ _ _ - - _ _ _ _ _ - - - _MAY _ _ _ X _ - 07 2012 JOAN A . MADDEN, J. : NEW YORK Plaintiff, Kemper Independence Insurance C o ~ u ~ t T ' I ( t X E R @ 8 ~ I C E moves for an order (i) pursuant to CPLR 3126, srriking the answers of defendants Sanford Wert, Sanford Wert, P . C . , Acupuncture, P . C . , Chiropractic, P . C . , Avenue I. Medical, P . C . , W.H.O. and Vega a n d granting a default judgment against these defendants, (ii) pursuant to CPLR 2201, staying the arbitration of Sanford Wert and Sanford Wert, M . D . , P.C., and (iii) discontinuing the action against defendant Woodhull Medical, P . C . Defendants Sanford Wert and Sanford Wert, P . C . (together "the Wert defendants") oppose the motion. Backsrouncj In this action, Kemper, an automobile insurer, s e e k s , i n t e r alia, a declaration that it is not obligated to p a y No-Fault claims of a n y of the defendants arising out of February 2, 2009 accident I in which defendant William Flores ("Flores") , was allegedly hit by an automobile. Flores claimed to have sustained substantial injuries in the accident, and Kernper received several 1 [* 3] claims from medical providers, including defendants seeking to recover N o - F a u l t benefits as alleged assignees of Flores. To verify these claims, Kemper sought Examinations Under Oath ("EUO") of Flores and various medical providers. According to Kemper, the medical provider defendants failed to appear for the EUOs and Kemper denied the claims. On January 7, 2010, Kemper commenced this action seeking a declaration that it properly disclaimed coverage. defendants, Woodhull, W.H.O. Acupunture P . C . The Wert ("W.H.O."), Avenue I Medical (Avenue I), and Vega Chiropractic, P.C. ("Vega") f i l e d an answer to the complaint (together "the answering defendants"). Plaintiff moved for a default judgment against t h e non-answering defendants and against W.H.O.,Avenue I., and Vega on the grounds that their answer was s e r v e d late. By decision, order and judgment d a t e d December 20, 2010, this court granted Kemper's motion f o r a d e f a u l t judgment against the non-answering defendants and issued an order and judgment declaring that Kemper owed no duty to pay No-Fault coverage or benefits to the non-answering defendants. Kemper now seeks to strike the answers of the answering defendants and/or an order granting a default judgment against the answering defendants based on their alleged failure to comply with discovery and to appear for court o r d e r e d discovery conferences. In particular, according to t h e affirmation of Kernper's counsel, and based on documentary evidence attached 2 [* 4] thereto, Woodhull was only answering defendant that appeared for a preliminary conference held on January 20, 2011, and none of * the answering defendants responded to the discovery demands and deposition notices served prior to the preliminary conference. On June 16, 2011, a compliance conference was held and the only of the answering defendants, only the attorney for W.H.O., Avenue I, and Vega appeared. The compliance conference order directed the answering defendants to comply with the preliminary conference order and set a status conference date for September 15, 2011. Plaintiff served new notices of depositions in accordance with the order, and also served a copy of the compliance conference order on the answering defendants. The Wert defendants appeared for deposition but did not provide a n y documentary discovery. W.H.O., Avenue I, and Vega provided discovery responses but did not appear for depositions.' On September 15, 2011 a status conference was held and none of the answering defendants appeared. The court issued an order scheduling a status conference f o r October 6, 2011, providing that upon defendants' "failure to appear at the next [status conference], the court will consider imposing sanctions and against the answering defendants who do not appear." On o r about September 19, 2011, the Wert defendants filed an arbitration with the American Arbitration Association seeking to recover No-Fault benefits in connection with the medical treatment they provided to Flores. Only the Wert defendants oppose the motion, noting that Dr. 3 [* 5] Wert appeared for a deposition on August 15, 2011, and asserting that the Wert defendants responded to the request for document discovery and attached this response. The Wert defend2nts also assert that Kemper has participated in two prior arbitrations "dealing with the same issue" and that the current arbitration which Kemper seeks to stay is pending before the AAA and the discovery sought in this action should be resolved before the arbitrator. In reply, Kemper asserts that the discovery response provided by the Wert defendants was f i r s t served with their opposition, and that the response is inadequate as it provides only claim forms and n o t documents relating to the action and the Wert defendants' response to most items was "not available or deemed appropriate." Kemper also contends that the arbitration should be stayed until the coverage issued raised in this action are resolved. CPLR 3126(3) provides that if a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just," including "an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.'' Under CPLR 3126 (1)(2),the court is authorized to order that the issues encompassed by the disclosure 4 [* 6] demand "be deemed resolved," or t h a t the party be precluded from introducing certain evidence o r from supporting or opposing certain claims. 1 "The drastic sanction of striking pleadings is justified only when the moving party shows conclusively t h a t t h e failure to disclose was wilful, contumacious or in bad faith" Roman v. C i t v of New Y o r k , 38 AD3d 442 ( l S t Dept 2007) (citation omitted) ; see also, M a r k s v. ViqQ, 303 AD2d 306 ( l S t Dept 2003) (noting t h a t "[iln view of the strong preference in our law that actions be decided on their merits . . . a court should not resort to the drastic remedy of striking a pleading for failure to comply with discovery directives unless the noncompliance is established to be both deliberate and contumacious"); &, C o u s j v . S i e b a I 4 8 AD3d 370 ( l s tDept 2008) (holding that plaintiff's "dilatory, evasive, obstructive, and ultimately contumacious cpnduct" warranted striking his complaint) (internal citations omitted). In this case, Kemper has not shown that the answering defendants' conduct in connection with discovery was such as to warrant striking their answer. In particular, t h e record shows that the answering defendants have responded to certain discovery requests. W.H.O., That being said, however, the failure of defendants Avenue I, and Vega to appear at several c o u r t conferences, including a status conference which t h e y were directed to attend by court order, or to appear f o r a deposition or to respond to this motion, warrants the issuance of an order determining the issues upon which the deposition were relevant 5 [* 7] and material according to Kernper's claims. Garfield v . Done Fashion, Inc. , 227 AD2d 128 ( l S t Dept 1996); Goldstein v, Janecka, 172 AD2d 463 ( l S t Dept 1991). AS f o r the Wert defendants, the I ourt finds that its response to Kernper's document demands is insufficient. The Wert defendants must comply with CPLR 3122 a ) which requires a party objecting to discovery and inspection \\toserve a response which shall state with reasonable particularity the r e a s o n s f o r each specific objection." Furthermore, if the Wert defendants do not have responsive documents, they must p r o v i d e an affidavit from a person with knowledge providing a "detailed statement" as to " t h e past and p r e s e n t status" of the documents sought, the record keeping methodology with respect to the documents, and the nature and e x t e n t of the search conducted for s u c h documents. Lonao Armor Elevator, Co., v. xp c., V, 278 AD2d 127 ( l BDept 2000); Fuqazv t T i m e Inc., 24 AD2d 443 (13t Dept 1965)(requiring plaintiff to produce documents where objection that h e d i d not have the requested documents was n o t supported by an affidavit from plaintiff or a person with knowledge). The Wert defendants' failure to comply with this order will result in an order resolving the issues upon which the documents are material and relevant in accordance with Kernper's claims. Next, as Kemper has not provided a basis for staying the arbitration under article 75, its request for such relief is denied. At the same time, the Wert defendants have not provided 6 [* 8] grounds for staying this action pending the outcome of the arbitration. In view of the above, it is ORDERED that defendants W . H . O . , Avenue I, and Vega shall appear for a deposition by June 1, 2012, or the issues upon which the deposition were relevant and material will be determined according to Kemper's claims; and it is further ORDERED that t h e Wert defendants shall provide a further response to plaintiff's notice for discovery and inspection da ed March 8, 2010 in accordance with this decision and o r d e r by May 18, 2012, or the issues which are material and relevant to the documents will be determined in accordance with Kernper's claims; and it is further ORDERED that t h e action is discontinued as against defendant Woodhull Medical Care, P.C.; and it is further ORDERED that the remaining parties shall a p p e a r for a status conference in Part 11, room 351, on June 7, 2012 at 9 : 3 0 am. A copy of this decision and order is being mailed by my chambers to counsel to the parties. DATED: NEW YORK COUNTY CLERKS OFFICE 7

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