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Quality Health Products As Assignee of Zanaiya Moore v. Geico General Ins. Co

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


August 23, 2012

QUALITY HEALTH PRODUCTS AS ASSIGNEE OF ZANAIYA MOORE,
APPELLANT,
v.
GEICO GENERAL INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 13, 2009.

Quality Health Prods. v GEICO Gen. Ins. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order, insofar as appealed from, granted defendant's motion to vacate a notice of trial and to compel plaintiff to respond to defendant's discovery demands, and denied, as premature, plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant's motion to vacate a notice of trial and to compel plaintiff to respond to defendant's outstanding discovery demands, and denied, as premature, plaintiff's motion for summary judgment.

It is uncontroverted that plaintiff filed a notice of trial and certificate of readiness stating that all discovery had been completed even though plaintiff had failed to, among other things, provide responses to defendant's demand for discovery and inspection. Consequently, defendant's timely motion to vacate the notice of trial (see CPLR 2103 [b], [c]; Uniform Rules of the NY City Civ Ct [22 NYCRR] § 208.17 [c]), was properly granted (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Moreover, the Civil Court properly compelled plaintiff to provide responses to defendant's outstanding discovery demands. We note that plaintiff was required, but failed, to challenge the propriety of defendant's demand for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]).

Inasmuch as plaintiff did not argue that defendant's discovery demands were palpably improper or privileged, it is required to produce all of the information sought therein.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 23, 2012

20120823

© 1992-2012 VersusLaw Inc.



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