Medina v. Allstate Insurance

266 A.D.2d 267, 698 N.Y.S.2d 271, 1999 N.Y. App. Div. LEXIS 11323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to recover no-fault benefits pursuant to a policy of automobile insurance, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (J. Leone, J.), dated September 8, 1998, which granted the defendant’s motion to strike the case from the trial calendar for failure to comply with discovery demands to the extent of (a) directing her to provide further responses to the defendant’s discovery demands within 30 days of the hearing of the motion and (b) precluded her from offering evidence at trial pertaining to any material not so provided, and (2) an order of the same court, dated November 16, 1998, which granted the defendant’s motion for partial summary judgment dismissing the plaintiff’s claim for additional lost earnings.

Ordered that the orders are affirmed, with one bill of costs.

Contrary to the plaintiffs contention, the record amply supports the conclusion that her failure to comply with the defendant’s discovery demands and with the court’s direction that she provide the requested information and documents was willful (see generally, Castrignano v Flynn, 255 AD2d 352). The plaintiff failed to demonstrate the existence of either a reasonable excuse for her noncompliance or a meritorious cause of action (see generally, Pantaliano v Goodman, 214 AD2d 607; Murdock v Center for Special Surgery, 199 AD2d 482; Bock v Schiowitz, 168 AD2d 593).

Similarly, the Supreme Court properly granted the defendant’s motion for partial summary judgment dismissing the plaintiffs claim for additional lost earnings, since the defendant provided the requisite competent, concrete evidence to support its position (see generally, Poturniak v Rupcic, 232 AD2d 541; Bunge v New York City Tr. Auth., 216 AD2d 264), and the plaintiffs speculative and conclusory assertions in opposition were insufficient to raise a genuine material issue of fact (see generally, Bailey v Jamaica Buses Co., 210 AD2d 192). Mangano, P. J., Bracken, S. Miller and Sullivan, JJ., concur.