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Queens Brooklyn Medical Rehab, P.C. As Assignee of Nissim Gallanti v. Lancer Insurance Company

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


December 21, 2011

QUEENS BROOKLYN MEDICAL REHAB, P.C. AS ASSIGNEE OF NISSIM GALLANTI,
APPELLANT,
v.
LANCER INSURANCE COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 20, 2010, deemed from a judgment of the same court entered February 8, 2010 (see CPLR 5520 [c]).

Queens Brooklyn Med. Rehab, P.C. v Lancer Ins. Co.

Decided on December 21, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The judgment, entered pursuant to the January 20, 2010 order granting defendant's application to dismiss the complaint, awarded defendant the principal sum of $50.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's application to dismiss the complaint based upon plaintiff's noncompliance with a conditional order of preclusion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5520 [c]).

After plaintiff had provided written responses to defendant's discovery demands, defendant moved to compel plaintiff to provide more complete responses to its discovery demands. By order entered April 30, 2008, the Civil Court (Diane A. Lebedeff, J.) directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. Thereafter, defendant moved to dismiss the complaint due to plaintiff's failure to comply with the April 2008 order. By order entered August 5, 2008, the court (Thomas D. Raffaele, J.) again directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. In November 2008, defendant moved to dismiss the complaint due to plaintiff's failure to comply with the prior two orders. In opposition to defendant's motion, plaintiff stated that it had served defendant with full and complete responses to its discovery demands. By order dated November 17, 2008, the court (Leslie J. Purificacion, J.) stated that the complaint "shall be dismissed" unless plaintiff provides management, lease and billing agreements within 14 days and "produces Dr. McGee for a deposition within 45 days thereafter." After defendant had filed an affidavit of noncompliance with the November 17, 2008 order, the court (Cheree A. Buggs, J.), by order dated January 20, 2010, dismissed the complaint.

Plaintiff contends on appeal that the November 2008 order should be vacated because plaintiff's "discovery responses made it explicitly clear that no management agreements exist or are in [plaintiff's] possession, and written billing agreements were never entered into between [plaintiff] and any other party"; that it was never in possession of a lease agreement; and that its representatives had testified at numerous depositions in other actions that the lease agreement was between landlord and a third party. At the outset, we note that plaintiff never asserted this argument in the Civil Court. In any event, a review of plaintiff's responses to defendant's discovery demands reveals that plaintiff did not provide full and complete responses to the demands, and never clearly indicated that no management, lease or billing agreements existed. As plaintiff has failed to comply with the court's November 17, 2008 order and as plaintiff's remaining contentions lack merit or are unpreserved for appellate review, we find no basis to disturb the judgment.

Accordingly, the judgment is affirmed.

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

Decision Date: December 21, 2011

20111221

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