Opinion
570544/04.
Decided October 3, 2005.
Defendant appeals from an order of the Civil Court, Bronx County, dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) which sua sponte "withdrew" defendant's motion to dismiss the complaint for failure to comply with court-ordered discovery and denied that branch of the motion for alternate relief to reduce the ad damnum clause to the sum of $4,098.77.
Order dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) reversed, with $10 costs, and defendant's motion to dismiss the complaint pursuant to CPLR 3126 for failure to comply with court-ordered discovery is granted.
PRESENT: HON. WILLIAM P. McCOOE, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
In this action to recover assigned first-party no-fault benefits for medical services rendered, defendant's motion to dismiss the complaint for failure to comply with court-ordered discovery should have been granted upon plaintiff's default in opposing the motion ( see Tutt v. City of Yonkers, 11 AD3d 532; Lo Cicero v. J.F.K. Intl. Airport, 131 AD2d 305). We note that defendant diligently attempted to enforce the court-ordered stipulation for discovery dated July 30, 2003 and that its motion for discovery sanctions was not untimely.
This constitutes the decision and order of the court.