Opinion
570448/19
10-26-2021
Country-Wide Insurance Company, Plaintiff-Respondent, v. Yao Jian Ping, Defendant-Appellant.
Unpublished Opinion
PRESENT: Edmead, P.J., McShan, Hagler, JJ.
PER CURIAM.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered March 29, 2021, which denied his motions (1) to strike the complaint or conditionally preclude plaintiff from offering evidence at trial for failure to comply with discovery orders, and (2) for leave to amend his answer to include a counterclaim in the sum of $24,938.59 plus interest and statutory attorneys' fees.
Order (Jose A. Padilla, Jr., J.), entered March 29, 2021, affirmed, with $10 costs.
In this action seeking a de novo adjudication of a no-fault insurance claim following a master arbitrator's award in excess of $5,000 (see Insurance Law § 5106[c]), Civil Court providently exercised its discretion in denying defendant's motion to strike the complaint or to conditionally preclude plaintiff from offering evidence for failure to comply with discovery orders. A motion court "is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused" (Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 N.Y.3d 843, 845 [2008] [internal quotation marks omitted]). Here, the motion court's finding that plaintiff's responses were sufficient is supported by the record and was a proper exercise of discretion (see Youwanes v Steinbrech, 193 A.D.3d 492 [2021]; Lyoussi v Etufugh, 188 A.D.3d 604, 605 [2020]). Nor was the court constrained by the doctrine of law of the case, which is inapplicable to prior discretionary conditional discovery orders (see Allstate Ins. Co. v Buziashvili, 71 A.D.3d 571, 572 [2010]; Brothers v Bunkoff Gen. Contrs., 296 A.D.2d 764, 765 [2002]).
Civil Court also providently exercised its discretion in denying defendant's eve of trial motion to amend his answer to assert a counterclaim for $24,938.59 in no-fault benefits, where he failed to establish a reasonable excuse for his years-long delay in moving for leave to amend (see Barry v Clermont York Assoc., LLC, 144 A.D.3d 607, 608 [2016]). Moreover, the proposed amendment would prejudice plaintiff at this stage of the proceedings, where discovery had been completed, a notice of trial had been filed and defendant previously limited his recovery to $15,251.76 based upon the fee schedule.
We have reviewed defendant's remaining contentions and find them to be without merit.