PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2012 NY Slip Op 51067(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, Queens County (Maureen A. Healy, J.), entered September 15, 2010. The order denied plaintiff’s motion to, in effect, vacate an order of the same court (Richard G. Latin, J.) entered May 13, 2010, which had dismissed the complaint upon plaintiff’s default in complying with a prior conditional order of the same court (Diane A. Lebedeff, J.) entered September 30, 2009.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Diane A. Lebedeff, J.), by order entered September 30, 2009, granted the branch of a motion by defendant seeking to compel plaintiff to provide responses to defendant’s outstanding discovery demands. The order required plaintiff to produce, among other things, the personal tax returns of its principal owner within 30 days of the date of the order, and provided that plaintiff’s noncompliance would “result in dismissal of plaintiff’s complaint with prejudice by filing an affidavit of noncompliance and settle [sic] order.” Thereafter, defendant served plaintiff with a proposed order with notice of settlement and an affirmation of noncompliance alleging that [*2]plaintiff had failed to produce the aforementioned tax returns. By order entered May 13, 2010, the Civil Court (Richard G. Latin, J.) dismissed the complaint with prejudice. Plaintiff contested neither the affirmation of noncompliance nor the proposed order.

Plaintiff then moved, pursuant to CPLR 5015 (a) (3), to, in effect, vacate the order dismissing the complaint on the ground that defendant had misrepresented plaintiff’s noncompliance with the order entered September 30, 2009. By order entered September 15, 2010, the Civil Court (Maureen A. Healy, J.) denied the motion.

Plaintiff’s contention on appeal, in effect, that defendant did not timely submit the proposed order with notice of settlement for court approval in accordance with Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a) is unpreserved for appellate review because plaintiff failed to raise the issue in the Civil Court (see Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596, 597 [1992]; cf. Mora v Mora, 39 AD3d 829 [2007]).

Furthermore, plaintiff failed to satisfy its burden of establishing the existence of any misrepresentation on the part of defendant because plaintiff did not demonstrate that it had, in fact, produced the personal tax returns of its principal owner in compliance with the order entered September 30, 2009 (see CPLR 5015 [a] [3]; see generally Welz v Welz, 83 AD3d 696, 697 [2011]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012