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Delta Diagnostic Radiology, P.C. As Assignee of Joseph Pierre-Saint, Appellant v. Travelers Property Casualty Company of America

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 11, 2012

DELTA DIAGNOSTIC RADIOLOGY, P.C. AS ASSIGNEE OF JOSEPH PIERRE-SAINT, APPELLANT, --
v.
TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered August 20, 2010.

Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am.

Decided on June 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The order, insofar as appealed from, granted the branch of defendant's motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel disclosure pursuant to CPLR 3124 or, in the alternative, to strike plaintiff's complaint or preclude plaintiff from offering evidence at trial, pursuant to CPLR 3126, for its failure to comply with defendant's demands for verified written interrogatories and expert witness disclosure, which had been served on plaintiff six weeks earlier. In opposition, plaintiff contended that defendant's motion was moot as it had served responses to defendant's discovery demands, and plaintiff annexed its responses to the opposition papers. The Civil Court granted the branch of defendant's motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested, finding that the responses provided by plaintiff to defendant's demand for verified written interrogatories were given by an employee of plaintiff's corporation, not by an owner, officer, or managing individual of the corporation, and, thus, that the responses were insufficient.

In our opinion, the Civil Court improvidently exercised its discretion in granting the branch of defendant's motion, pursuant to CPLR 3126, seeking to preclude plaintiff from offering evidence at trial related to the discovery requested (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424 [2011]; Allen v Calleja, 56 AD3d 497 [2008]), particularly in light of the fact that, at the time the motion was heard by the court, plaintiff had already responded to defendant's discovery requests, which had first been served on plaintiff only six weeks before the motion was brought. The drastic remedy of preclusion is inappropriate absent a clear showing that a party's failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750 [2011]; Mazza v Seneca, 72 AD3d 754 [2010]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654 [2010]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2010]). Here, defendant failed to make such a showing. Moreover, with respect to the Civil Court's determination to preclude plaintiff from presenting evidence at trial related to the discovery requested because a mere employee of plaintiff's corporation had responded to the discovery requests, we note that it is not improper for an employee who has the requisite knowledge and data to respond on behalf of his or her corporation (see Necchi S.P.A. v Nelco Sewing Mach. Sales Corp., 23 AD2d 543 [1965]; Southbridge Finishing Co. v Golding, 2 AD2d 430 [1956]; Siegel, NY Prac § 345, at 573; § 361, at 613 [5th ed]). Accordingly, we reverse the order and deny the branch of defendant's motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested.

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

Decision Date: June 11, 2012

20120611

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