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Stracar Medical Services, P.C. As Assignee of Maurice Tucker and Antonett Bartlett v. State Farm Mutual Automobile Ins. Co

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


October 18, 2011

STRACAR MEDICAL SERVICES, P.C. AS ASSIGNEE OF MAURICE TUCKER AND ANTONETT BARTLETT,
APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan Lebowitz, J.H.O.), dated October 22, 2009.

Stracar Med. Servs., P.C. v State Farm Mut. Auto. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2011

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

The order, insofar as appealed from, conditionally granted the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branch of defendant's motion seeking to dismiss the complaint, pursuant to CPLR 3126, to the extent of granting defendant's motion to dismiss the complaint if plaintiff failed to respond to defendant's discovery demands within 45 days and produce its owner for an examination before trial within 60 days.

CPLR 3101 (a) directs "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Pursuant to CPLR 3124, the court may grant an order compelling discovery and "a trial court is given broad discretion to oversee the discovery process" (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see also Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Absent an improvident exercise of that discretion, the court's determination will not be disturbed on appeal (see Matter of US Pioneer Elecs. Corp. [Nikko Elec. Corp. of Amer.], 47 NY2d 914, 916 [1979]; Gillen v Utica First Ins. Co., 41 AD3d 647). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion. Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: October 18, 2011

20111018

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