State Farm Mutual Automobile Insurance Company v. Hertz Corporation

• Decision Date: 11 September 2007
• Docket Number: 2006-08435.,2006-06091.,2006-02865.
• Citation: 2007 NY Slip Op 06664,841 N.Y.S.2d 617,43 A.D.3d 907
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of EDWARD BRADLEY, Appellant, v. HERTZ CORPORATION et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 907

841 N.Y.S.2d 617

2007 NY Slip Op 06664

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of EDWARD BRADLEY, Appellant, v. HERTZ CORPORATION et al., Respondents. (And a Third-Party Action.)

2006-02865.

2006-06091.

2006-08435.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 11, 2007.

In a subrogation action to recover insurance benefits paid to the plaintiff's insured, the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Dorsa, J.), entered February 14, 2006, as granted the defendants' motion for summary judgment dismissing the complaint, (2) so much of an order of the same court entered May 15, 2006, as denied those branches of its motion which were for leave to renew and reargue its opposition to the defendants' motion for summary judgment dismissing the complaint, and (3) so much of an order of the same court also entered May 15, 2006, which denied those branches of its second motion which were for leave to renew and reargue its opposition to the defendants' motion for summary judgment dismissing the complaint.

Ordered that the appeals from so much of the two orders entered May 15, 2006, as denied those branches of the plaintiff's two motions which were for leave to reargue are dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered February 14, 2006 is affirmed insofar as appealed from; and it is further,

Ordered that the orders entered May 15, 2006 are affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

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 "[t]he plaintiff will be precluded at the time of trial from introducing into evidence any matter contained in the demands set forth in Paragraph `A,' 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 [2002]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, the plaintiff was required to demonstrate a reasonable excuse for the failure to...