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Five Boro Psychological Services, P.C. As Assignee of Queen anderson, Respondent v. Mvaic

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


May 6, 2013

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF QUEEN ANDERSON, RESPONDENT, --
v.
MVAIC, APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Stuart Cohen, J.H.O.), entered April 7, 2010.

Five Boro Psychological Servs., P.C. v MVAIC

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $958.32.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a non-jury trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to the admission into evidence of plaintiff's claim form, an assignment of benefits form and plaintiff's proof that the claim form had been timely mailed to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Plaintiff's counsel advised the Civil Court that defendant had failed to comply with a prior order, which required defendant to serve discovery responses by a date certain, and with a subsequent stipulation. While plaintiff's counsel acknowledged that the discovery responses had ultimately been served, she argued that they had been served late and had been sent to plaintiff's counsel's old address. The Civil Court precluded defendant from interposing its defense of lack of coverage and awarded judgment to plaintiff.

Although defendant's discovery responses were late and sent to the wrong address, the record does not establish that such conduct was willful and contumacious. As a result, the Civil Court improvidently exercised its discretion when it precluded defendant from raising its lack of coverage defense and awarded judgment to plaintiff (see CPLR 3126; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798 [2010]; Palomba v Schindler El. Corp., 74 AD3d 1037 [2010]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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