SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
July 13, 2012
VILLAGE MEDICAL AND REHAB AS ASSIGNEE OF JOSE BONILLA,
TRAVELERS INDEMNITY COMPANY,
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 21, 2010.
Village Med. & Rehab v Travelers Indem. 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 13, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order denied defendant's motion to dismiss 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 dismiss 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 denying defendant's motion to dismiss the complaint based on plaintiff's failure to comply with a discovery stipulation.
The parties entered into a written stipulation, dated June 3, 2010, in 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, defendant moved to dismiss the complaint based on plaintiff's failure to comply with the stipulation. The Civil Court denied defendant's motion, finding that plaintiff's 38-day delay in providing its responses was de minimis.
The June 3, 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 ; 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).
It is well settled that stipulations are independent contracts that are subject to the principles of contract law
(see Hallock v State of New York, 64 NY2d 224, 230 ; Matter of Frutiger, 29 NY2d 143, 149-150 ; Matter of
Marquez, 299 AD2d 551 ). The record does not demonstrate that
the stipulation was entered into through fraud, collusion, mistake or
accident, or that the stipulation was unjust or inequitable, or would
provide anyone with an unconscionable advantage (see Hallock, 64 NY2d
at 230; Malvin v Schwartz, 65 AD2d 769 , affd 48 NY2d 693
). The parties voluntarily entered into the stipulation, and it
is uncontroverted that plaintiff violated its terms by failing to
timely respond to defendant's discovery demands. Contrary to the
determination of the Civil Court, we find that plaintiff's 38-day
delay in providing its responses was not de minimis. Since, by the
terms of the stipulation, plaintiff is "precluded from offering
evidence at trial," plaintiff cannot establish its prima facie case.
Accordingly, the order is reversed and defendant's motion to dismiss
the complaint is granted.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: July 13, 2012
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