Michael Palmeri, M.D., PLLC v General Assur. Co., 2010 NY Slip Op 51879(U)(App. Term 1st Dept. 2010)
I am not even sure this is something you would even see out of the second department. I am working off the assumption that there were no prior discovery applications in this matter; rather, this was the first discovery motion and it was either first time or second time the motion was on the calendar.
Here is the short discussion from the case:
“Defendant did not present a reasonable excuse for its failure to provide written responses to plaintiff’s disclosure requests or its failure to submit opposition papers to plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126. Therefore, Civil Court providently exercised its discretion in denying defendant’s motion to vacate a default judgment entered against it following its failure to oppose plaintiff’s motion to strike.
Even assuming that defendant’s argument regarding its request for an adjournment of plaintiff’s motion to strike is properly before us, Civil Court providently exercised its discretion in denying that request (see generally Santora & McKay v Mazzella, 211 AD2d 460, 462 ).”
So this is what the court is telling me: (1) Make a discovery motion on every case; (2) Refuse to consent to any adjournments; (3) Force the court to write an order on all of these motions; and (4) Appeal every case where answering papers were not interposed and the court refuses to strike the complaint.
Query – can it now be argued that in a no-fault matter, it is an abuse of discretion not to strike a plaintiff’s complaint, where the ultimate sanction for failing to respond to a perfunctory disclosure motion is not granted? Think about it.