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Failure to comply with conditional preclusion order leads to summary judgment.

In this subrogation action to recover insurance benefits paid to the plaintiff's insured, the plaintiff failed to comply with a so-ordered stipulation that contained a conditional order of preclusion which had required it to produce discovery responses by a certain date, and the Supreme Court, Queens County (Dorsa, J.), granted the defendants' motion for summary judgment dismissing the complaint. The Appellate Division affirmed

"On July 15, 2005, the plaintiff entered into a stipulation with the defendants and the third-party defendant requiring it to respond to their discovery requests within 60 days. The stipulation, which was so-ordered by the Supreme Court on July 25, 2005, provided that 'the plaintiff will be precluded at the time of trial from introducing into evidence any matter contained in the demands set forth in Paragraph W above and not served within sixty (60) days of the date herein: It is undisputed that the plaintiff failed to serve its response to the demands, including the demand for a bill of particulars, within the relevant 60-day period. A conditional so-ordered stipulation becomes absolute upon a party's failure to sufficiently and timely comply (see Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440, 440-441; Siltan v City of New York, 300 AD2d 298). To avoid the adverse impact of the conditional so-ordered stipulation, the plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see Gilmore v Garvey, 31 AD3d 381; Goldsmith Motors Corp. v Chemical Bank, supra; Gutenplan v Dauman, 154 AD2d 337, 337-338). The plaintiff failed to meet this burden. Since the order of preclusion prevented the plaintiff from making out a prima facie case, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint."

Comment: In most cases where a party makes a motion for preclusion, especially in no-fault litigation, the motion is resolved with a stipulation like the one in this case which provides that the other party must provide certain discovery responses within a certain amount of time, and also provides that if the discovery is not exchanged, the offending party will be precluded from offering evidence as to anything which was the subject of the demands. The attorneys for both sides will then submit the stipulation to the judge, who will mark it "so ordered" which gives the stipulation the weight of a court order. The party who fails to comply with the stipulation does so at its own risk, for as you can see by this decision, the penalty is to lose the case.

Not all so-ordered discovery stipulations will necessarily entail the loss of the case for the non-complying party. It depends on what was required to be produced. If the requested discovery goes to the heart of that party's case--for example, if it is the essential elements of the plaintiff's prima facie case or the defendant's defense--then the consequence is necessarily the loss of the case for the party who does not comply. However, a discovery stipulation can be limited to a single element of a case, such as the production of a certain witness. The penalty there may be as simple as preclusion as to production of a witness for that party, which may hurt that party's case but not destroy it completely.

State Farm Mut. Auto. Ins. Co. a/s/o Edward Bradley v. Hertz Corp. 2007 NY Slip Op 06664, Appellate Division, Second Department
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Publication:Insurance Advocate
Date:Sep 24, 2007
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