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Colonia Medical, P.C. As Assignee of Muhammad Chaudhry v. Liberty Mutual Fire Insurance Co

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


December 16, 2011

COLONIA MEDICAL, P.C. AS ASSIGNEE OF MUHAMMAD CHAUDHRY,
RESPONDENT,
v.
LIBERTY MUTUAL FIRE INSURANCE CO.,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 17, 2010.

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

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

The judgment, entered pursuant to so much of an order of the same court entered February 23, 2010 as granted the branch of plaintiff's motion seeking summary judgment, awarded plaintiff the principal sum of $7,716.62.

ORDERED that the judgment is reversed, without costs, so much of the order entered February 23, 2010 as granted the branch of plaintiff's motion seeking summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, pursuant to a so-ordered stipulation, defendant was required to serve responses to plaintiff's interrogatories by a specified date or "be precluded from offering evidence in this action."

It is undisputed that defendant failed to timely serve responses to plaintiff's interrogatories. Subsequently, plaintiff moved for an order precluding defendant and for summary judgment. By order entered February 23, 2010, the Civil Court granted plaintiff's motion, on the ground that since defendant was precluded from offering evidence, defendant could not rebut plaintiff's entitlement to summary judgment. Defendant appeals from the judgment entered pursuant to the February 23, 2010 order.

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon defendant'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]). As a result, defendant is precluded from offering evidence in this action. However, plaintiff was not entitled to summary judgment because its moving papers failed to establish a prima facie entitlement to such relief (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 15 Misc 3d 128[A], 2007 NY Slip Op 50602[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered February 23, 2010 as granted the branch of plaintiff's motion seeking summary judgment is vacated and plaintiff's motion for summary judgment is denied.

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

Decision Date: December 16, 2011

20111216

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