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Blumenthal Chiropractic, P.C. and Curtis Blumenthal, D.C. As Assignees of Arlene Sanchez v. Praetorian Insurance

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


December 23, 2011

BLUMENTHAL CHIROPRACTIC, P.C. AND CURTIS BLUMENTHAL, D.C. AS ASSIGNEES OF ARLENE SANCHEZ,
RESPONDENTS,
v.
PRAETORIAN INSURANCE,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 2010.

Blumenthal Chiropractic, P.C. v Praetorian Ins.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2011

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

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated October 9, 2009, plaintiffs agreed to serve defendant with verified responses to its written discovery demands within 60 days of the date of the order or be precluded from offering evidence at trial. In January 2010, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiffs were precluded from offering any evidence at trial; and, therefore, that plaintiffs could not establish their prima facie case. In opposition, plaintiffs offered no excuse for their failure to comply with the so-ordered stipulation; rather, plaintiffs stated that they had served defendant with their responses in June 2010. The Civil Court denied defendant's motion finding that "there exists reasonable excuse for the delay in responding to defendant's discovery demands i.e. change of attorneys handling this matter and the plaintiff [sic] should not be prejudiced due to changes in counsel."

A conditional so-ordered stipulation becomes absolute upon a party'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, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiffs were required to demonstrate a reasonable excuse for their failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiffs failed to meet this burden. Although the Civil Court found that defendant's change of attorney constituted a valid excuse, plaintiffs' opposing affirmation made no reference to any change of attorney nor indicated how any such change of attorney excused its compliance. Accordingly, as the order of preclusion prevents plaintiffs from establishing their prima facie case, defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: December 23, 2011

20111223

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