Country-Wide Ins. Co. v. Yao Jian Ping

Country-Wide Ins. Co. v Yao Jian Ping (2021 NY Slip Op 50997(U)) [*1] Country-Wide Ins. Co. v Yao Jian Ping 2021 NY Slip Op 50997(U) [73 Misc 3d 132(A)] Decided on October 26, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Edmead, P.J., McShan, Hagler, JJ. 570448/19 Country-Wide Insurance Company, Plaintiff-Respondent, against Yao Jian Ping, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered March 29, 2021, which denied his motions (1) to strike the complaint or conditionally preclude plaintiff from offering evidence at trial for failure to comply with discovery orders, and (2) for leave to amend his answer to include a counterclaim in the sum of $24,938.59 plus interest and statutory attorneys' fees. Per Curiam. Order (Jose A. Padilla, Jr., J.), entered March 29, 2021, affirmed, with $10 costs. In this action seeking a de novo adjudication of a no-fault insurance claim following a master arbitrator's award in excess of $5,000 (see Insurance Law § 5106[c]), Civil Court providently exercised its discretion in denying defendant's motion to strike the complaint or to conditionally preclude plaintiff from offering evidence for failure to comply with discovery orders. A motion court "is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused" (Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008] [internal quotation marks omitted]). Here, the motion court's finding that plaintiff's responses were sufficient is supported by the record and was a proper exercise of discretion (see Youwanes v Steinbrech, 193 AD3d 492 [2021]; Lyoussi v Etufugh, 188 AD3d 604, 605 [2020]). Nor was the court constrained by the doctrine of law of the case, which is inapplicable to prior discretionary conditional discovery orders (see Allstate Ins. Co. v Buziashvili, 71 AD3d 571, 572 [2010]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]). Civil Court also providently exercised its discretion in denying defendant's eve of trial motion to amend his answer to assert a counterclaim for $24,938.59 in no-fault benefits, where he failed to establish a reasonable excuse for his years-long delay in moving for leave to amend (see Barry v Clermont York Assoc., LLC, 144 AD3d 607, 608 [2016]). Moreover, the proposed amendment would prejudice plaintiff at this stage of the proceedings, where discovery had been [*2]completed, a notice of trial had been filed and defendant previously limited his recovery to $15,251.76 based upon the fee schedule. We have reviewed defendant's remaining contentions and find them to be without merit. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 26, 2021