DOWNTOWN ACUPUNCTURE v. STATE FARM INSURANCE COMPANY (2007)

Plaintiff commenced this action against the defendant to recover first party no-fault benefits pursuant to Section 5106(a) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.), for medical services rendered.

Defendant moves for an order granting summary judgment in favor of defendant based on plaintiff's attempt to re-litigate a claim which was previously dismissed by the Court, and imposition of sanctions against plaintiff's counsel for having engaged in frivolous conduct.

Plaintiff opposes the motion on the grounds that the prior action was dismissed due to plaintiff's failure to comply with discovery demands.

The plaintiff commenced this action against the defendant to recover first party no-fault benefits pursuant to Section 5106(a) of the Insurance Law and Regulations, in the amount of $800.00 for acupuncture treatment allegedly rendered to the assignor, Cindy Hall, as a result of an automobile accident which occurred on July 27, 2002.   Prior to this action, the plaintiff commenced an action against defendant State Farm on behalf of the same assignor, Cindy Hall for the same services as indicated in this action.

In the prior action, after service of the summons and complaint, issue was joined and discovery demands were made on or about January 30, 2003.   On May 10, 2004, the plaintiff served a Notice of Trial.   The defendant moved to strike to the Notice of Trial on the grounds that discovery had not been completed.   Thereafter on June 28, 2004, the defendant served a supplemental demand for discovery.   On June 29, 2004, the parties appeared before the Hon. Ellen Spodek, and the attorneys entered into a stipulation which marked the case off the trial calendar, and required plaintiff to provide all discovery on or before July 29, 2004.   Due to plaintiff's failure to comply with the discovery demands as stipulated to, the defendant moved for an order to dismiss plaintiff's complaint for failure to comply.   On May 10, 2005, the parties appeared before the Hon. Robin Garson.   After oral argument on the motion, the court granted defendant's order to show cause, and dismissed the action due to plaintiff's failure to comply with the stipulation requiring plaintiff to comply with all outstanding discovery.

Thereafter, the plaintiff commenced the action which is the subject of defendant's motion to dismiss, pursuant to CPLR 3212.   Defendant argues that the plaintiff is attempting to re-litigate the same bill which was the subject of the previous lawsuit.   Defendant further argues that the bills in question do not involve different dates of service than the previous bills submitted under the prior action, and therefore plaintiff is estopped from re-litigating the bills in issue due to the dismissal of plaintiff's prior action.

In opposition to defendant's motion to dismiss, the plaintiff argues that pursuant to CPLR § 205, the plaintiff can recommence the action within six months after termination.   Plaintiff argues that Judge Garson's dismissal of the prior case limited her holding to the discovery stipulation only.

After careful consideration of the moving papers, supporting documents and opposition thereto, the court finds as follows:

The plaintiff timely commenced the instant action against the defendant seeking the same relief that they sought in the prior action.

CPLR Section 205.   Termination of action-states as follows:

(a) New action by plaintiff.   If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

However, this court disagrees with plaintiff's argument that it is not precluded from commencing a new action under a new index number.   The complaint was dismissed after oral argument of defendant's motion to dismiss, on the grounds that the plaintiff failed to comply with discovery demands as per a stipulation signed by both attorneys.   Plaintiff's attempt to now argue that the discovery demands were unduly cumbersome and burdensome, and therefore plaintiff was unable to comply with said demands is too late.   The arguments, as conceded to by plaintiff should have been made before the judge hearing oral argument on the motion to dismiss. Furthermore, plaintiff could have moved to re-argue the motion and/or appeal the court's decision.

In Andrea v. Arnone, Hedin, Casker, et. al., 5 N.Y.3d 514, 806 N.Y.S.2d 453, 840 N.E.2d 565 [2005], the Court of Appeals held that the “neglect to prosecute” exception in CPLR 205(a) applies not only where the dismissal of the prior action is for “[w]ant of prosecution pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal.”   The plaintiff failed to comply with discovery demands, and after repeated demands for the outstanding discovery, as well as failure to comply with a stipulation, defendant moved to dismiss the complaint, which was granted by the court.

The purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205(a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road.   See, Andrea v. Arnone, Hedin, Casker, et. al., supra;  Carven Assoc. v. American Home Assur. Corp., 84 N.Y.2d 927, 620 N.Y.S.2d 812, 644 N.E.2d 1368 [1994];  Flans v. Federal Ins. Co., 43 N.Y.2d 881, 403 N.Y.S.2d 466, 374 N.E.2d 365 [1978].

Accordingly, defendant's motion to dismiss is hereby granted;  the complaint is dismissed in its entirety, without an imposition of sanctions.

This constitutes the order of this Court.

ALICE FISHER RUBIN, J.