Bhatt v Travelers Ins. Co.

[*1] Bhatt v Travelers Ins. Co. 2005 NYSlipOp 50528(U) Decided on April 13, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-932 RI C

Mihir Bhatt, M.D. as Assignee of Sarah Levy, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Richmond County (P. Straniere, J.), entered March 9, 2004, which, inter alia, denied its motion to dismiss the complaint.

Order unanimously reversed without costs and defendant's motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for medical services rendered. The defendant interposed an answer and a demand for a bill of particulars dated September 11, 2000. Notwithstanding this demand and a subsequent letter by defendant's attorney dated January 11, 2002, plaintiff failed to serve a bill of particulars. By order dated March 14, 2002, the court granted defendant's unopposed motion to preclude the plaintiff "from offering the particulars at . . . trial" unless the plaintiff served a bill of particulars within 30 days of service of the order with notice of entry. Defendant made a motion returnable December 18, 2003 for an order pursuant to CPLR 3126 to dismiss the complaint for plaintiff's failure to comply with the order dated March 14, 2002. Plaintiff served a bill of particulars on January 27, 2004. As a result of the plaintiff's failure to serve a bill of particulars by the date set forth in the conditional order of preclusion, that order became absolute (Michaud v City of New York, 242 AD2d 369 [1997]). In order for the plaintiff to avoid the adverse impact of an order of preclusion, it was incumbent upon him to demonstrate an excusable default and a meritorious claim (Felicciardi v Town of Brookhaven, 205 AD2d 495 [1994]). Plaintiff's [*2]attorney offered no excuse for the default. Since the plaintiff cannot prove its case without the items demanded in the bill of particulars, defendant's motion to dismiss the complaint should have been granted.
Decision Date: April 13, 2005