March 23, 2016

Dynasty Med., P.C. v Mercury Cas. Ins. Co. (2016 NY Slip Op 50403(U))

Headnote

The relevant facts of the case involved a provider seeking to recover first-party no-fault benefits as an assignee, and the defendant's appeal from an order denying their motion seeking summary judgment dismissing the complaint. The main issue decided was whether the motion court had properly exercised its discretion in denying the defendant's motion after the plaintiff had failed to comply with two prior orders to produce its treating provider at a deposition. The court held that the trial court had broad discretion to oversee the discovery process and that the determination of the nature and degree of the penalty to be imposed for failing to comply with an order compelling disclosure lay within the discretion of the motion court. The order denying the defendant's motion was affirmed, without costs.

Reported in New York Official Reports at Dynasty Med., P.C. v Mercury Cas. Ins. Co. (2016 NY Slip Op 50403(U))

Dynasty Med., P.C. v Mercury Cas. Ins. Co. (2016 NY Slip Op 50403(U)) [*1]

Dynasty Med., P.C. v Mercury Cas. Ins. Co.

2016 NY Slip Op 50403(U) [51 Misc 3d 131(A)]

Decided on March 23, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., TOLBERT and GARGUILO, JJ.
2014-891 S C

Dynasty Medical, P.C., as Assignee of CARLOS FELIPE, Respondent,
against
Mercury Casualty Ins. Co., Appellant.

Appeal from an order of the District Court of Suffolk County, Fourth District (David A. Morris, J.), entered March 10, 2014. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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, defendant appeals from so much of an order of the District Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint, pursuant to CPLR 3126, after plaintiff had failed to comply with two prior orders directing it to produce its treating provider at a deposition. The order precluded plaintiff’s treating provider from testifying at trial.

“[A] trial court is given broad discretion to oversee the discovery process” (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). The determination of the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling disclosure lies within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]). The motion court’s determination of whether to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, should not be disturbed on appeal absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). Upon a review of the record, we find that the District Court did not improvidently exercise its discretion in declining to grant the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

Marano, P.J., Tolbert and Garguilo, JJ., concur.

Decision Date: March 23, 2016