PDG Psychological, P.C. v State Farm Mut. Ins. Co.

[*1] PDG Psychological, P.C. v State Farm Mut. Ins. Co. 2007 NY Slip Op 51757(U) [16 Misc 3d 138(A)] Decided on September 14, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 18, 2007; it will not be published in the printed Official Reports.

Decided on September 14, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-955 Q C.

PDG PSYCHOLOGICAL, P.C. a/a/o GAVIN JORDAN, Appellant,

against

STATE FARM MUTUAL INSURANCE CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 28, 2005. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion to strike the complaint pursuant to CPLR 3126 to the extent of compelling plaintiff to respond to defendant's discovery demands and to appear for an examination before trial.

Appeal from so much of the order as granted defendant's cross motion to the extent of compelling plaintiff to respond to defendant's discovery demands and to appear for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to, inter alia, strike the complaint pursuant to CPLR 3126 due to plaintiff's failure to provide discovery. The court denied plaintiff's motion for summary judgment and granted defendant's cross motion to the extent of compelling plaintiff to provide responses to defendant's discovery demands and to produce plaintiff's principal for an examination before trial. The instant appeal by plaintiff ensued.

We do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff's motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff's motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff's possession and plaintiff had not complied with defendant's discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant's argument. Consequently, the branch of the order which denied plaintiff's [*3]
motion for summary judgment is affirmed (see id.; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

Moreover, since plaintiff failed to submit written opposition to defendant's cross motion to compel disclosure, that branch of the order which granted defendant's cross motion to the extent of compelling plaintiff to provide responses to defendant's discovery demands and to produce Philip D. Goldstein for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant's cross motion to compel disclosure is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007