Opinion
No. 2010–2392KC.
2012-08-23
QUALITY HEALTH PRODUCTS as Assignee of Zanaiya Moore, Appellant, v. GEICO GENERAL INS. CO., Respondent.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 13, 2009. The order, insofar as appealed from, granted defendant's motion to vacate a notice of trial and to compel plaintiff to respond to defendant's discovery demands, and denied, as premature, plaintiff's motion for summary judgment.
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, plaintiff appeals from so much of an order of the Civil Court as granted defendant's motion to vacate a notice of trial and to compel plaintiff to respond to defendant's outstanding discovery demands, and denied, as premature, plaintiff's motion for summary judgment.
It is uncontroverted that plaintiff filed a notice of trial and certificate of readiness stating that all discovery had been completed even though plaintiff had failed to, among other things, provide responses to defendant's demand for discovery and inspection. Consequently, defendant's timely motion to vacate the notice of trial ( seeCPLR 2103[b], [c]; Uniform Rules of the N.Y. City Civ Ct [22 NYCRR] § 208.17[c] ), was properly granted ( see Savino v. Lewittes, 160 A.D.2d 176 [1990];Queens Chiropractic Mgt, P.C. v. Country Wide Ins. Co., 23 Misc.3d 142[A], 2009 N.Y. Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v. State Farm Mut. Auto. Ins. Co., 21 Misc.3d 128[A], 2008 N.Y. Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v. General Assur. Co., 21 Misc.3d 45 [App Term, 2d & 11th Jud Dists 2008] ).
Moreover, the Civil Court properly compelled plaintiff to provide responses to defendant's outstanding discovery demands. We note that plaintiff was required, but failed, to challenge the propriety of defendant's demand for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged ( see Fausto v.. City of New York, 17 AD3d 520 [2005];Marino v. County of Nassau, 16 AD3d 628 [2005];Midwood Acupuncture, P.C. v. State Farm Fire & Cas. Co., 21 Misc.3d 144[A], 2008 N.Y. Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008] ). Inasmuch as plaintiff did not argue that defendant's discovery demands were palpably improper or privileged, it is required to produce all of the information sought therein.
Accordingly, the order, insofar as appealed from, is affirmed.