Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp.

[*1] Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp. 2010 NY Slip Op 51722(U) [29 Misc 3d 127(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-768 K C.

Terra Chiropractic, P.C. as Assignee of Pia St. Lawrence and David Matthews, Appellant,

against

Hertz Claim Management Corp., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered February 17, 2009. The order 1) denied plaintiff's motion, pursuant to CPLR 3104 (d), to vacate so much of an order of the same court (Alan L. Lebowitz, J.H.O.), dated July 15, 2008, as had conditionally granted defendant's motion to strike the complaint, and 2) granted defendant's subsequent motion to strike the complaint, pursuant to CPLR 3126.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant answered and submitted numerous discovery demands. After plaintiff did not respond to its demands, defendant moved for preclusion pursuant to CPLR 3126.
By order entered January 11, 2008, a judicial hearing officer (J.H.O.) conditionally granted defendant's motion by directing plaintiff to provide verified responses to defendant's written discovery demands within 60 days or else be precluded from offering evidence at trial. In July 2008, defendant moved to strike the complaint, pursuant to CPLR 3126, due to plaintiff's failure to comply with the January 2008 order. By order dated July 15, 2008, issued by a different J.H.O., defendant's motion was conditionally granted unless plaintiff completely responded to all of defendant's interrogatories and provided defendant with corporate documents by August 7, 2008. Although plaintiff subsequently provided responses to those interrogatories that it determined to be material and necessary, the responses were not provided by August 7, 2008, and plaintiff did not provide defendant with corporate documents.

In September 2008, plaintiff moved for review of the July 15, 2008 order pursuant to [*2]CPLR 3104 (d) and, upon review, vacatur of the order and denial of defendant's July 2008 motion. Also in September 2008, defendant moved, pursuant to CPLR 3126, to strike the complaint due to plaintiff's failure to comply with the January 11, 2008 and July 15, 2008 orders. By order entered February 17, 2009, the Civil Court denied plaintiff's motion and granted defendant's motion to strike the complaint. The instant appeal by plaintiff ensued.

The determination of whether to strike a pleading for a failure to comply with court-ordered discovery lies within the sound discretion of the court of original instance (see CPLR 3126 [3]; Mir v Saad, 54 AD3d 914 [2008]), and a determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). It is uncontroverted that plaintiff failed to provide responses to all of defendant's discovery demands within 60 days of the January 11, 2008 order. Therefore, the Civil Court could have granted defendant's July 2008 motion to strike the complaint but, instead, provided plaintiff with another opportunity to respond to the demands. Consequently, we find that the February 17, 2009 order, insofar as it denied plaintiff's motion pursuant to CPLR 3104 (d), did not constitute an improvident exercise of discretion. To the extent that plaintiff contends that the July 15, 2008 order violated the doctrine of law of the case, we note that this doctrine does not apply to prior discovery orders (see Sullivan v Nigro, 48 AD3d 454 [2008]; Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511 [2005]; D & R Realty Assoc. Corp. v Pisano, 24 Misc 3d 143[A], 2009 NY Slip Op 51736[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A], 2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]).

We similarly find that so much of the February 17, 2009 order as granted defendant's motion to strike the complaint, pursuant to CPLR 3126, was not an improvident exercise of discretion. Plaintiff was required, but failed, to challenge the propriety of defendant's discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff was obligated to produce the information sought except as to matters which were palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; 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]). Plaintiff could not merely provide responses solely to those items it deemed material and necessary. Since plaintiff provided inadequate and unreasonable excuses for its failures to comply with the court orders, such failures to comply can be considered willful and contumacious (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d at 954-955; Duncan v Hebb, 47 AD3d 871 [2008]; D & R Realty Assoc. Corp., 24 Misc 3d
143[A], 2009 NY Slip Op 51736[U]; see also Mir v Saad, 54 AD3d at 914). Accordingly, we affirm the February 17, 2009 order.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 2010