Jamhil Med., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51028(U))

Decided on July 1, 2014

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 (Genine D. Edwards, J.), entered July 17, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery on March 8, 2010, including a notice to take the deposition of plaintiff’s owner and its treating doctor. On November 17, 2010, plaintiff served a notice of trial and certificate of readiness. Thereafter, defendant moved, pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.17 (c) and CPLR 3126, to vacate plaintiff’s notice of trial and certificate of readiness, to strike the case from the trial calendar and, pursuant to CPLR 3124, to compel discovery. Defendant argued that it sought the testimony of plaintiff’s owner and documentary discovery in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits because it had failed to comply with applicable state or local licensing laws. In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Plaintiff opposed the motion, asserting, among other things, that defendant had failed to demonstrate its entitlement to discovery. By order entered July 6, 2011, the Civil Court conditionally granted defendant’s motion and ordered plaintiff to produce its “purported” owner and its “purported” employee for an examination before trial within 60 days of the order.

Defendant subsequently moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the July 6, 2011 order of the Civil Court since plaintiff had failed to produce its owner and its employee for duly scheduled examinations before trial. Plaintiff opposed the motion and submitted written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court entered July 17, 2012 which granted defendant’s motion and dismissed the complaint with prejudice.

” 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], quoting Giano 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 refusal to adequately comply with [*2]discovery requests, even after being directed to do so by court order, as well as 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]).

Plaintiff’s remaining contention is not properly before this court as it is raised for the first time on appeal.

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.