Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered September 21, 2010, deemed from a judgment of the same court entered November 5, 2010 (see CPLR 5501 [c]).
A.M. Med., P.C. v General Assur. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and ALIOTTA, JJ
The judgment, entered pursuant to the September 21, 2010 order granting plaintiff's motion for an order of preclusion and summary judgment, and denying defendant's amended cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,623.93.
ORDERED that the judgment is reversed, without costs, so much of the order entered September 21, 2010 as granted plaintiff's motion for an order of preclusion and summary judgment is vacated, and plaintiff's motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion for an order of preclusion and summary judgment, and denying defendant's amended cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
The parties entered into a written stipulation, dated March 24, 2009, by which they agreed that, within 60 days of the date of the stipulation, each party would provide verified responses to the other's discovery demands, and that if a party failed to comply, it would be precluded from offering evidence at trial. Thereafter, plaintiff moved for an order of preclusion and summary judgment, and, by amended cross motion, defendant sought summary judgment dismissing the complaint. The Civil Court granted plaintiff's motion and denied defendant's amended cross motion, finding that defendant had violated the terms of the stipulation by failing to timely provide responses to plaintiff's discovery demands and, thus, was precluded from rebutting plaintiff's prima facie case.
The March 2009 stipulation was not "so-ordered" so as to function as a conditional order of preclusion which became absolute upon plaintiff's failure to comply (cf. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 ; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 ; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, it was subscribed by the parties' attorneys (see CPLR 2104). While defendant violated the terms of the stipulation by taking more than 60 days to respond to plaintiff's discovery demands, defendant substantially complied with the stipulation by providing responses which were, at most, four days late. Although discovery determinations rest within the sound discretion of the trial court, an appellate court is vested with corresponding power to substitute its own discretion even when there is no abuse by the trial court (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 ; Staten v City of New York, 90 AD3d 893 ). Upon the exercise of our discretion, we find that plaintiff's motion for an order of preclusion should have been denied.
A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit it submitted in support of its motion was insufficient to establish that the documents annexed thereto were admissible purusant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 ; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff is not entitled to summary judgment. With respect to defendant's amended cross motion, since the affidavit by defendant's litigation examiner did not establish when the denial of claim form was mailed to plaintiff, defendant did not show that it had timely denied the claims. Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint.
Accordingly, the judgment is reversed, so much of the order entered September 21, 2010 as granted plaintiff's motion for an order of preclusion and summary judgment ...