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Allstate Social Work and Psychological Services, P.L.L.C. As Assignee of Irlyne Thelamy, Daniel Frost and Maksim Zhoglo v. Autoone Ins. Co

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


December 19, 2011

ALLSTATE SOCIAL WORK AND PSYCHOLOGICAL SERVICES, P.L.L.C. AS ASSIGNEE OF IRLYNE THELAMY, DANIEL FROST AND MAKSIM ZHOGLO,
APPELLANT,
v.
AUTOONE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 2, 2010.

Allstate Social Work & Psychological Servs., P.L.L.C. v Autoone 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011

PRESENT: RIOS, J.P., WESTON and GOLIA, JJ

The order, insofar as appealed from as limited by the brief, granted the branch of defendant's motion seeking to vacate the notice of trial, and granted the branch of defendant's motion seeking to compel plaintiff to respond to defendant's discovery demands to the extent of directing plaintiff to "respond to defendant's written demands and provide management agreements, lease agreements, and the names/addresses of all landlords."

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to compel plaintiff to respond to its discovery demands is granted to the extent of directing plaintiff to respond to defendant's written demands, and to provide defendant with management agreements, lease agreements, and the names and addresses of all landlords, limited to the time period between January 1, 2002 and May 2, 2005; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted the branch of defendant's motion seeking to vacate the notice of trial, and granted the branch of defendant's motion seeking to compel plaintiff to respond to defendant's discovery demands to the extent of directing plaintiff to "respond to defendant's written demands and provide management agreements, lease agreements, and the names/addresses of all landlords."

Plaintiff contends on appeal that the Civil Court should not have granted the branch of defendant's motion seeking to vacate the notice of trial. A review of the record, however, indicates that, in its affirmation in opposition to defendant's motion, plaintiff failed to argue that the notice of trial should not be vacated. Consequently, this contention is unpreserved for appellate review. In any event, since defendant timely moved to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), which notice contains the erroneous statement that discovery has been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]), the notice of trial was properly vacated (see Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002]).

Inasmuch as plaintiff failed to timely challenge the propriety of defendant's discovery demands, it is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). Discovery demands concerning matters relating to defenses which a defendant is precluded from raising are palpably improper even where the plaintiff did not specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). An affirmative defense that a professional service corporation fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), is not precludable. In the instant case, plaintiff has failed to demonstrate that defendant is seeking to obtain discovery relating to precluded defenses.

In view of the fact that defendant's interrogatories sought information for the time period of January 1, 2002 until the date of the interrogatories, May 2, 2005, the order is modified by providing that the branch of defendant's motion seeking to compel plaintiff to respond to its discovery demands is granted to the extent of directing plaintiff to respond to defendant's written demands, and to provide defendant with management agreements, lease agreements, and the names and addresses of all landlords, limited to the time period between January 1, 2002 and May 2, 2005. Plaintiff's remaining contentions lack merit.

Rios, J.P., Weston and Golia, JJ., concur.

Decision Date: December 19, 2011

20111219

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