Rockaway Med. & Diagnostic, P.C. v Chubb Ins. Co. (2023 NY Slip Op 51241(U))

The Law Offices of “Shay” Shailesh Deshpande, LLC (David O’Connor, Esq.), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rachel Freier, J.), dated April 29, 2020. The order granted defendant’s motion to dismiss the complaint.

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

In 2004, plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated May 25, 2006, plaintiff was required to provide “complete” responses to defendant’s discovery demands by July 24, 2006 or the complaint would be dismissed. Insofar as relevant to this appeal, defendant moved, in January 2020, in effect pursuant to CPLR 3126, to dismiss the complaint on the ground that plaintiff had failed to comply with the stipulation. By order dated April 29, 2020, the Civil Court (Rachel Freier, J.) granted defendant’s motion.

A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see e.g. Okumus v Living Room Steak House, Inc., 112 AD3d 799, 799 [2013]; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979, 980 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50673[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To avoid the adverse impact of a conditional so-ordered stipulation, [*2]the defaulting party must demonstrate a reasonable excuse for its failure to comply with the stipulation and the existence of a meritorious cause of action or defense (see Okumus v Living Room Steak House, Inc., 112 AD3d at 799; Panagiotou v Samaritan Vil., Inc., 66 AD3d at 980; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d at 908).

Here, as the Civil Court properly found, plaintiff failed to comply with the stipulation. Defendant demanded verified responses to defendant’s interrogatories, but the record shows that plaintiff’s written interrogatory responses were not properly verified. While plaintiff’s responses to defendant’s discovery demands indicated that plaintiff would provide defendant with certain information concerning plaintiff’s expert witnesses to be called at trial, the record is bereft of any indication that the information was ever provided. In opposition to defendant’s motion, plaintiff objected to many of defendant’s discovery demands. However, since the demands for discovery were served on plaintiff in 2004 and plaintiff did not challenge the propriety of the demands within the time prescribed by CPLR 3122 (a) and 3133 (a), plaintiff was obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Recine v City of New York, 156 AD3d 836 [2017]; Fausto v City of New York, 17 AD3d 520, 522 [2005]; Maiga Prods. Corp. v United Servs. Auto. Assn., 57 Misc 3d 127[A], 2017 NY Slip Op 51148[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff has failed to assert that the discovery demands it objected to sought information which is privileged or establish that the demands are palpably improper, plaintiff was obligated to provide defendant with that information, and its failure to do so rendered its responses incomplete.

The stipulation, which functioned as a conditional order, therefore became absolute upon plaintiff’s failure to comply with the requirement that it provide complete responses to defendant’s discovery demands (see Feng Lucy Luo v Yang, 150 AD3d 726, 727 [2017]; Okumus v Living Room Steak House, Inc., 112 AD3d at 799; Alhomedi v TDS Leasing, Inc., 41 AD3d 747, 748 [2007]). As plaintiff failed to offer a reasonable excuse for its failure to comply with the stipulation and failed to demonstrate the existence of a potentially meritorious cause of action, the Civil Court properly dismissed the action pursuant to the stipulation (see Khan v Old Navy, 166 AD3d 599, 600 [2018]; Alhomedi v TDS Leasing, Inc., 41 AD3d at 748).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.