Boris Kleyman, P.C. v General Cas. Ins. Co.

[*1] Boris Kleyman, P.C. v General Cas. Ins. Co. 2010 NY Slip Op 50992(U) [27 Misc 3d 141(A)] Decided on June 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-605 Q C.

Boris Kleyman, P.C. a/a/o GASTON DANDRADE, Appellant,

against

General Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5520 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant's motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated December 13, 2006, plaintiff was required "to serve complete verified responses to [d]efendant's [w]ritten [d]iscovery demands" by February 26, 2007. The stipulation further provided that "[f]ailure to comply [with] the terms [of the stipulation] will result in [p]laintiff being precluded from offering evidence or testimony at trial."

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Over a year after plaintiff's deadline to comply with the so-ordered stipulation had passed, defendant moved to dismiss plaintiff's complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, over a year after the deadline and after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant's motion. A judgment was subsequently entered, from which we deem plaintiff's appeal to be taken (CPLR 5520 [c]).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff's failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented [*2]plaintiff from making out a prima facie case, the Civil Court properly granted defendant's motion seeking to dismiss the complaint. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010