Dynasty Med., P.C. v. Mercury Cas. Ins. Co.

Full title: Dynasty Medical, P.C., as Assignee of CARLOS FELIPE, Respondent, - v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Date published: Mar 23, 2016

2016 N.Y. Slip Op. 50403 (N.Y. App. Term 2016)

36 N.Y.S.3d 407

Opinion

2014-891 S C

03-23-2016

Dynasty Medical, P.C., as Assignee of CARLOS FELIPE, Respondent, - v. Mercury Casualty Ins. Co., Appellant.

MARANO, P.J., TOLBERT and GARGUILO, JJ.

PRESENT: :

Appeal from an order of the District Court of Suffolk County, Fourth District (David A. Morris, J.), entered March 10, 2014. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branch of defendant's motion seeking summary judgment dismissing the complaint, pursuant to CPLR 3126, after plaintiff had failed to comply with two prior orders directing it to produce its treating provider at a deposition. The order precluded plaintiff's treating provider from testifying at trial.

"[A] trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). The determination of the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling disclosure lies within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]). The motion court's determination of whether to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, should not be disturbed on appeal absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). Upon a review of the record, we find that the District Court did not improvidently exercise its discretion in declining to grant the branch of defendant's motion seeking summary judgment dismissing the complaint.

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

Marano, P.J., Tolbert and Garguilo, JJ., concur. Decision Date: March 23, 2016