Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50673(U)(App. Term 2d Dept. 2015)
(1) After plaintiff failed to provide the so-ordered discovery responses, defendant moved pursuant to CPLR 3126 to strike the complaint and dismiss the action, asserting that plaintiff had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiff was precluded from offering any evidence; and that, therefore, plaintiff could not establish its prima facie case. In opposition, plaintiff admitted that its responses had been served late but asserted that the delay was due to law office failure and that defendant was not prejudiced by the delay. The Civil Court denied defendant’s motion, stating that it was preferable to resolve the case on the merits and holding that the accrual of interest was tolled during the time period in which plaintiff’s so-ordered discovery responses were untimely.”
(2) “To avoid the adverse impact of the conditional so-ordered stipulation, plaintiff was required to demonstrate a reasonable excuse for its failure to timely comply with the stipulation and the existence of a meritorious cause of action”
(3) Plaintiff failed to do this and the complaint was stricken.
My three thoughts: (a) Was the discovery that necessary to Defendant – my answer is most likely no; (b) Was the Court correct in light of its recent holding that a prima facie case in a breached stipulation situation could be established without plaintiff presenting evidence, i.e, Defendants denials and proof that payment was not made; (c) Can the court show some flexibility on this issue? The shoe many times is on the other foot and holding someone’s feet to the fire because they are 20 or 30 days late is a great way of making enemies for no good reasons. Yes, if the case is worth $5,000,000 and the default will net your client that sum of money – okay. But the case is worth a fraction of that; a little collegiality goes along way. And to take this to the Appellate Term? Tacky in my opinion.
