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Horizon Medical, P.C. As Assignee of Aushif Nelson v. Travelers Property Casualty Ins. Co

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


June 28, 2012

HORIZON MEDICAL, P.C. AS ASSIGNEE OF AUSHIF NELSON,
RESPONDENT, --
v.
TRAVELERS PROPERTY CASUALTY INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated August 18, 2010.

Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co.

Decided on June 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., PESCE and ALIOTTA, JJ

The order, in effect, denied defendant's motion to strike the complaint based on plaintiff's failure to comply with a discovery stipulation.

ORDERED that the order is reversed, without costs, and defendant's motion to strike the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which, in effect, denied its unopposed motion to strike the complaint on the ground that plaintiff had failed to comply with a May 2010 stipulation. It is uncontroverted that plaintiff did not comply with the terms of the May 2010 stipulation between the parties, which provided that, if plaintiff failed to respond to defendant's outstanding discovery demands within 30 days, it would be precluded "from offering evidence or contesting any defense as to those items demanded but not provided."

The May 2010 stipulation was not "so-ordered" and, thus, did not function as a conditional order of preclusion which becomes absolute upon a failure to 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]; 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). Stipulations of settlement are independent contracts that are subject to the principles of contract law, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d 551 [2002]). The courts will generally deny enforcement of a stipulation where its enforcement would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]).

Defendant's discovery demands included, among other things, a request for a declaration as to whether plaintiff had submitted any no-fault claims and, if so, copies of those claims. As plaintiff failed to respond to this demand, we find no basis to deny enforcement of the stipulation, pursuant to which plaintiff is precluded from offering evidence of its claims. Consequently, plaintiff cannot make out its prima facie case.

Accordingly, the order is reversed and defendant's motion to strike the complaint is granted.

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

Decision Date: June 28, 2012

20120628

© 1992-2012 VersusLaw Inc.



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