Sigma Psychological, P.C. v Chubb Indem. Ins. Co. (2013 NY Slip Op 51107(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered May 6, 2011. The order, insofar as appealed from, granted defendant’s motion pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 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 dismiss the complaint pursuant to CPLR 3126.

In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover assigned first-party no-fault benefits as a fraudulently incorporated professional corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and established that it had sought disclosure related to that defense. Defendant further established that plaintiff had failed to comply with a so- ordered stipulation and two court orders wherein plaintiff had been directed to provide the disclosure. ” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012] and Giano [*2]v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its repeated refusal to fully comply with defendant’s discovery requests, even after agreeing to do so by so-ordered stipulation and being directed to do so by court orders, and the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]). We note that plaintiff’s motion to stay discovery was untimely. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013