[*1]
Dyckman Med. Diagnostic, P.C. v Travelers Prop. Cas.
2005 NY Slip Op 51572(U) [9 Misc 3d 129(A)]
Decided on October 3, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 3, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, P.J.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570544/04

Dyckman Medical Diagnostic, P.C., Assignee of Gertrudis Morel, Plaintiff-Respondent,

against

Travelers Property Casualty, Defendant-Appellant.


Defendant appeals from an order of the Civil Court, Bronx County, dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) which sua sponte "withdrew" defendant's motion to dismiss the complaint for failure to comply with court-ordered discovery and denied that branch of the motion for alternate relief to reduce the ad damnum clause to the sum of $4,098.77.


PER CURIAM:

Order dated August 19, 2004 (Mary Ann Brigantti-Hughes, J.) reversed, with $10 costs, and defendant's motion to dismiss the complaint pursuant to CPLR 3126 for failure to comply with court-ordered discovery is granted.

In this action to recover assigned first-party no-fault benefits for medical services rendered, defendant's motion to dismiss the complaint for failure to comply with court-ordered discovery should have been granted upon plaintiff's default in opposing the motion (see Tutt v City of Yonkers, 11 AD3d 532 [2004]; Lo Cicero v J.F.K. Intl. Airport, 131 AD2d 305 [1987]). We note that defendant diligently attempted to enforce the court-ordered stipulation for discovery dated July 30, 2003 and that its motion for discovery sanctions was not untimely. [*2]

This constitutes the decision and order of the court.
Decision Date: October 03, 2005