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Eagle Surgical Supply, Inc. v. Allstate Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.
May 22, 2014
43 Misc. 3d 143 (N.Y. App. Term 2014)

Opinion

No. 2012–578KC.

2014-05-22

EAGLE SURGICAL SUPPLY, INC. as Assignee of Nicholas Montaque, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.


Present: WESTON, J.P., ALIOTTA and SOLOMON, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 13, 2011. The order denied plaintiff's motion for an order of preclusion.

ORDERED that the order is reversed, with $30 costs, and plaintiff's motion for an order of preclusion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation, dated February 14, 2011, pursuant to which defendant was to serve responses to plaintiff's discovery demands within 30 days or be “precluded from offering items that were requested by plaintiff in its discovery demands, but were not provided by defendant, in this action.” By notice of motion dated April 18, 2011, plaintiff moved for an order of preclusion, alleging that defendant had failed to comply with the discovery stipulation. On June 22, 2011, the parties stipulated to adjourn the motion until December 13, 2011, and that opposition to the motion was to be served by October 13, 2011. Defendant did not submit written opposition to the motion. Nevertheless, the Civil Court denied plaintiff's motion, stating that “respondent served discovery responses in May 2011.”

Plaintiff established that discovery responses had not been served within the stipulated time period, and defendant failed to submit written opposition to plaintiff's motion either within the stipulated time frame for the service of opposition papers, or at all. Under these circumstances, plaintiff's motion should have been granted.

Accordingly, the order is reversed and plaintiff's motion for an order of preclusion is granted.

WESTON, J.P., ALIOTTA and SOLOMON, JJ., concur.


Summaries of

Eagle Surgical Supply, Inc. v. Allstate Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.
May 22, 2014
43 Misc. 3d 143 (N.Y. App. Term 2014)
Case details for

Eagle Surgical Supply, Inc. v. Allstate Ins. Co.

Case Details

Full title:EAGLE SURGICAL SUPPLY, INC. as Assignee of Nicholas Montaque, Appellant…

Court:Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Districts.

Date published: May 22, 2014

Citations

43 Misc. 3d 143 (N.Y. App. Term 2014)
2014 N.Y. Slip Op. 50874
993 N.Y.S.2d 644