B.Y., M.D., P.C. v Lancer Ins. Co.

[*1] B.Y., M.D., P.C. v Lancer Ins. Co. 2010 NY Slip Op 50493(U) [26 Misc 3d 146(A)] Decided on March 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-558 N C.

B.Y., M.D., P.C., JR CHIROPRACTIC, P.C. and OLGA BARD ACUPUNCTURE, P.C. a/a/o CHARLES NWACHUKWU, Appellants,

against

Lancer Insurance Company, Respondent.

Appeals from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 2, 2008, and an order of the same court (Norman Janowitz, J.) entered December 22, 2008. The order entered July 2, 2008, insofar as appealed from, denied plaintiffs' motion for summary judgment. The order entered December 22, 2008 denied a motion by plaintiff B.Y., M.D., P.C. for a protective order and, in effect, granted the branch of defendant's cross motion seeking to dismiss, for failure of said plaintiff to comply with defendant's discovery demands, so much of the complaint as sought to recover upon claims of said plaintiff.

ORDERED that the appeal from the order entered July 2, 2008 is dismissed as abandoned; and it is further,

ORDERED that the order entered December 22, 2008 is modified by deleting the provision thereof which, in effect, granted defendant's cross motion to dismiss so much of the complaint as sought to recover upon claims of plaintiff B.Y., M.D., P.C., and by substituting therefor a provision granting the branch of defendant's cross motion seeking to compel said plaintiff to comply with defendant's discovery demands to the extent of compelling said plaintiff to produce the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of defendant's notice for discovery and inspection, and to serve responses to questions 1, 6 through 9, and 23 through 25 of defendant's "demand for verified written [*2]interrogatories," insofar as the information sought relates to said plaintiff, within 60 days of the order entered hereon; as so modified, the order is affirmed without costs.

The appeal by plaintiffs from the order entered July 2, 2008 is dismissed as abandoned since the only appellant's brief submitted was by plaintiff B.Y., M.D., P.C. (B.Y.) and said brief states that the appeal is from the order "entered Dec. 17 [sic], 2008," and there are no issues raised in the brief with respect to the July 2, 2008 order.

In this action by providers to recover assigned first-party no-fault benefits, defendant served combined discovery demands, consisting of demands requesting the production of corporate documents, medical records, and various miscellaneous items, as well as "a demand for verified written interrogatories." Rather than responding to such discovery demands or interrogatories, or objecting to them within 20 days of service (see CPLR 3122 [a]; 3133 [a]), B.Y., approximately one month after that 20-day period, moved for a protective order pursuant to CPLR 3103, asking the District Court to excuse its delay and to limit disclosure on the ground that the disclosure sought by defendant was "oppressive" in scope. Defendant cross-moved to dismiss, pursuant to CPLR 3126, so much of the complaint as sought to recover on B.Y.'s claims, based upon B.Y.'s failure to comply with its discovery demands, or, in the alternative, for an order, pursuant to CPLR 3124, compelling B.Y. to comply with said demands. By order entered December 22, 2008, the District Court denied B.Y.'s motion for a protective order as untimely and granted defendant's cross motion seeking dismissal. The instant appeal by B.Y. ensued.

CPLR 3103 (a) empowers the motion court to issue a protective order "at any time." The failure of a party to respond to disclosure demands within the applicable time periods (see CPLR 3122 [a]; 3133 [a]) or to move promptly for a protective order after receipt of said demands, however, is "more likely to be resolved against the movant who provided no objections and was tardy with the motion. The issuance of a protective order is within the broad discretion of the court and such dilatory conduct can often result in a court's refusal to exercise its powers under CPLR 3103 (a)" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3103:3). Accordingly, since B.Y. did not proffer a reasonable excuse for its delay, the court did not improvidently exercise its discretion in denying B.Y.'s motion for a protective order.

While a motion court has discretion to dismiss a complaint as a sanction against a plaintiff who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126 [3]; see Kihl v Pfeffer, 94 NY2d 118 [1999]), this drastic sanction is generally only justified where the party seeking dismissal demonstrates that the failure to comply with court-ordered discovery was "deliberate and contumacious" (see Furniture Fantasy v Cerrone, 154 AD2d 506, 507 [1989]). Moreover, the movant has the initial burden of coming forward with a sufficient showing of wilfulness (id.). Since defendant herein failed to meet that initial burden, it was an improvident exercise of discretion for the District Court to have granted defendant's cross motion to the extent of dismissing the complaint insofar as it sought to recover upon claims of B.Y.

In view of the fact that B.Y. failed to timely challenge the propriety of defendant's notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant's "demand for verified written interrogatories" (see CPLR 3133 [a]), it is obligated to produce the information sought except as to matters which are privileged or palpably improper (see New Era [*3]Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). To the extent that defendant's discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that B.Y. did not timely object thereto (id.). However, defendant seeks discovery, inter alia, to support its defense that B.Y. is ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (see New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U]). As a result, discovery of certain items requested by defendant is not palpably improper, and B.Y. did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of its notice for discovery and inspection, and to responses to questions 1, 6 through 9, and 23 through 25 of its "demand for verified written interrogatories" insofar as the information sought relates to B.Y. (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008
NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 19, 2010