Illinois Natl. Ins. Co. v Schumann

Illinois Natl. Ins. Co. v Schumann 2017 NY Slip Op 07772 Decided on November 9, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 9, 2017
Manzanet-Daniels, J.P., Andrias, Gische, Kern, Singh, JJ.
4894 159868/14

[*1]Illinois National Insurance Company, Plaintiff-Respondent,

v

Robert Schumann, et al., Defendants-Appellants.

Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.

Frenkel Lambert Weiss Weisman & Gordon, LLP, New York (Lawrence Lambert of counsel), for respondent.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered September 15, 2016, in favor of plaintiff, and bringing up for review an order, same court and Justice, entered September 30, 2016, which, among other things, denied defendants' motion for summary judgment, and granted plaintiff's cross motion for summary judgment on its claim for $64,000 against defendants, unanimously affirmed, without costs.

The motion court correctly determined that defendants owed plaintiff the balance of its Workers' Compensation Law § 29 lien and that defendants had failed to prove an accord and satisfaction of the lien, as there was no bona fide dispute concerning the amount due and owing (Marine Midland Bank v Scallen , 161 AD2d 103, 105 [1st Dept 1990]).

In any event, and as a separate rationale for the result, the motion court providently exercised its discretion in sanctioning defendants for noncompliance with the court's discovery orders (CPLR 3126) so that accord and satisfaction was unavailable to defendants as an affirmative defense.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 9, 2017

CLERK