June 30, 2006

Bronxborough Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51327(U))

Headnote

The relevant facts the court considered were that the plaintiff, Bronxborough Medical, P.C., was seeking to recover assigned first-party no-fault benefits from Allstate Insurance Co., who denied the claim on the grounds that the injuries were not caused by the accident. The main issue decided by the court was whether the plaintiff's failure to respond to defendant's discovery demands and appear for an examination before trial warranted the dismissal of the complaint, or if the plaintiff should be compelled to respond to the discovery demands and appear for an examination before trial. The holding of the court was that the plaintiff's failure to challenge the defendant's notice of discovery within the prescribed time "foreclosed inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper" and therefore, the order compelling plaintiff to respond to defendant's discovery demands and appear for an examination before trial was affirmed.

Reported in New York Official Reports at Bronxborough Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51327(U))

Bronxborough Med., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51327(U)) [*1]

Bronxborough Med., P.C. v Allstate Ins. Co.

2006 NY Slip Op 51327(U) [12 Misc 3d 138(A)]

Decided on June 30, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1278 K C.

Bronxborough Medical, P.C., aao Liriano Ysidro, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered August 2, 2005. The order granted defendant’s motion to dismiss the complaint to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant denied the claim on the ground, inter alia, that the injuries were not caused by the accident. Defendant moved to dismiss plaintiff’s complaint based on its failure to respond to defendant’s discovery demands and failure to appear for an examination before trial or, in the alternative, an order compelling plaintiff to respond to its discovery demands and to appear for an examination before trial. The plaintiff’s failure to challenge defendant’s notice of discovery within the time prescribed “foreclosed inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper” (Fausto v City of New York, 17 AD3d 520, 522 [2005]; see Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]). Consequently, the order, which compelled plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 30, 2006