January 15, 2021

Jenkins v Clarendon Ins. Co. (2021 NY Slip Op 50030(U))

Headnote

The court considered the fact that the defendant moved for summary judgment dismissing the complaint on the basis that the plaintiff had failed to comply with a discovery order, and as a result, should be precluded from offering testimony at trial. The main issue decided in the case was whether the plaintiff's failure to comply with the discovery order warranted preclusion of testimony at trial. The holding of the court was that upon a review of the record, they agreed with the Civil Court's implicit determination that preclusion was not warranted under the circumstances presented. As a result, the order denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Jenkins v Clarendon Ins. Co. (2021 NY Slip Op 50030(U))

Jenkins v Clarendon Ins. Co. (2021 NY Slip Op 50030(U)) [*1]

Jenkins v Clarendon Ins. Co.

2021 NY Slip Op 50030(U) [70 Misc 3d 135(A)]

Decided on January 15, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1838 K C

Michelle Jenkins, Respondent,
against
Clarendon Insurance Company, Appellant.

Law Offices of Moira Doherty, P.C. (Janice P. Rosen of counsel), for appellant. Law Office of Thomas Torto (Thomas Torto of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fischer, J.), entered February 22, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by an eligible injured person to recover first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on that ground that, due to plaintiff’s failure to comply with a discovery order dated October 16, 2009, plaintiff was precluded from offering testimony at trial. Defendant appeals from so much of an order of the Civil Court (Pamela L. Fischer, J.) entered February 22, 2013 as denied defendant’s motion. Upon a review of the record, we agree with the Civil Court’s implicit determination that preclusion is not warranted under the circumstances presented.

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

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 15, 2021