Opinion
No. 2010–2858QC.
2012-07-13
VILLAGE MEDICAL AND REHAB as Assignee of Jose Bonilla, Respondent, v. TRAVELERS INDEMNITY COMPANY, Appellant.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 21, 2010. The order denied defendant's motion to dismiss the complaint based on plaintiff's failure to comply with a discovery stipulation.
ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion to dismiss the complaint based on plaintiff's failure to comply with a discovery stipulation.
The parties entered into a written stipulation, dated June 3, 2010, in which they agreed that, within 60 days of the date of the stipulation, each party would provide verified responses to the other's discovery demands, and that if a party failed to comply, it would be precluded from offering evidence at trial. Thereafter, defendant moved to dismiss the complaint based on plaintiff's failure to comply with the stipulation. The Civil Court denied defendant's motion, finding that plaintiff's 38–day delay in providing its responses was de minimis.
The June 3, 2010 stipulation was not “so-ordered” and, thus, did not function as a conditional order of preclusion which becomes absolute upon a failure to comply ( see e.g. Panagiotou v. Samaritan Vil., Inc., 66 AD3d 979 [2009];State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 43 AD3d 907, 908 [2007];Midisland Med., PLLC v. N.Y. Cent. Mut. Ins. Co., 27 Misc.3d 141[A], 2010 N.Y. Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ). However, it was subscribed by the parties' attorneys ( seeCPLR 2104). It is well settled that stipulations are independent contracts that are subject to the principles of contract law ( see Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984];Matter of Frutiger, 29 N.Y.2d 143, 149–150 [1971];Matter of Marquez, 299 A.D.2d 551 [2002] ). The record does not demonstrate that the stipulation was entered into through fraud, collusion, mistake or accident, or that the stipulation was unjust or inequitable, or would provide anyone with an unconscionable advantage ( see Hallock, 64 N.Y.2d at 230;Malvin v. Schwartz, 65 A.D.2d 769 [1978],affd48 N.Y.2d 693 [1979] ). The parties voluntarily entered into the stipulation, and it is uncontroverted that plaintiff violated its terms by failing to timely respond to defendant's discovery demands. Contrary to the determination of the Civil Court, we find that plaintiff's 38–day delay in providing its responses was not de minimis. Since, by the terms of the stipulation, plaintiff is “precluded from offering evidence at trial,” plaintiff cannot establish its prima facie case. Accordingly, the order is reversed and defendant's motion to dismiss the complaint is granted.