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Viviane Etienne Medical Care, P.C. As Assignee of Telmo Carchipulla v. Auto One Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


October 11, 2011

VIVIANE ETIENNE MEDICAL CARE, P.C. AS ASSIGNEE OF TELMO CARCHIPULLA,
APPELLANT,
v.
AUTO ONE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards), entered June 18, 2009.

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint due to plaintiff's failure to respond to defendant's discovery requests. By order entered July 16, 2008, the Civil Court granted defendant's motion to the extent of directing plaintiff to provide verified responses to defendant's discovery demands within 60 days or be precluded from offering evidence at trial. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint on the ground that plaintiff had failed to comply with the July 16, 2008 order. The Civil Court denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint.

Plaintiff failed to serve responses to the demands within the 60-day period provided for in the Civil Court's order of July 16, 2008. Moreover, the responses which plaintiff served after defendant had made its cross motion were incomplete. A conditional order of preclusion becomes absolute upon a party's failure to timely and sufficiently comply therewith (see 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 order and the existence of a meritorious cause of action (see Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. As the preclusion order became absolute, plaintiff is unable to offer any evidence at trial in this action. Consequently, the Civil Court properly granted defendant's cross motion to dismiss the complaint.

Plaintiff's remaining contentions are unpreserved for appellate review or lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: October 11, 2011

20111011

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