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SUPREME COURT OF THE STATE OF NEW YORK Index No. 704733/18
COUNTY OF QUEENS
NOTICE OF MOTION
KATHRYN FINNEGAN-FINCK Return Date: 11/08/2018
Plaintiff'
INSURANCE ACTION
-Against-
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Defendant.
Counselors:
PLEASE TAKE NOTICE, that upon the annexed affirmation of William A. Benson, Esq., dated
October 12, 2018, upon the pleadings and proceedings heretofore had herein, the undersigned will move
8th
this Court, IN Queens Supreme Court on the day Of November, 2018 at 9:30 o'clock in the forenoon of
that day or as soon thereafter as counsel can be heard for an Order:
1) Pursuant to CPLR § 3133 and CPLR § 3126, striking the Answer for
itsfailure to comply with plaintiff's discovery demands;
2) Rendering a judgment by default against defendant in favor of
plaintiff for payment of the medical billstotaling $126,870.49, and
3) Directing statutory interest, statutory attorneys fees and costs be
granted in favor of plaintiff;and
4) Or in the alternative, pursuant to CPLR § 3124 compelling
defendant to answer plaintiff's discovery demands within twenty
(20) days herein;
5) Or in the alternative, precluding defendant from offering any
evidence or testimony atthe trialof this action with referenced to the
items sought within said discovery; and
6) For such other and further relief as to this Court may seem just and
proper.
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PLEASE TAKE FURTHER NOTICE that you are required serve upon the undersigned your
answering papers no later than seven (7) days before the return day of this application. If services of
opposing papers are made by mail, same must be mailed twelve (12) days prior to the return date of this
application.(CPLR § 2103).
PLEASE TAKE FURTHER NOTICE that in the event service is not made upon the
undersigned as set forth in the preceding paragraph, the Court should not read nor hear any opposition set
forth the Respondent and in no event give any consideration to same. See. Wallin v. Wallin, 34
by
A.D.2d 870 (1970).
Dated: October 12, 2018
LEWIN & BAGLIO, LLP
By: WILLIAM A. BENSON, ESQ.
Attorneys for the Plaintiff
1100 Shames Drive
Suite 100
Westbury, New York 11590
Tel: (516) 307-1777
Fax: (516) 307-1770
L&B File No.: 1809-01 QS
To:
NICOLINI, PARADISE, FERRETTI &
SABELLA
Attorney for the Defendant
114 Old Country Road, Suite 500
Mineola, NY 11501
(516)
741-6355
Defendant's File No.: D18-0182MM(1)
Defendant's Claim No.: 326W73552-
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SUPREME COURT OF THE STATE OF NEW YORK Index No. 704733/18
COUNTY OF QUEENS
AFFIRMATIONIN SUPPORT OF
PLAINTIFF'S MOTION TO STRIKE
KATHRYN FINNEGAN-FINCK THE ANSWER
Plaintiff, Return Date: 11/08/2018
-Against-
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Defendant.
WILLIAM A. BENSON, ESQ., an attorney admitted to practice in the Courts in the State of New York
affirms that the following statements are true under the penalties of perjury:
1) I am an associate of the law firm of LEWIN & BAGLIO, LLP, attorneys for plaintiff,and
as such, I am fully familiar with the facts and circumstances herein.
2) This Affirmation is respectfully submitted in support of plaintiff's various forms of relief
as set forth in plaintiff'snotice of motion.
3) This affirmation is made upon personal knowledge, the sources thereof being the official
Court records, the filemaintained in the office of LEWIN & BAGLIO, LLP, independent investigations,
and the prior proceedings had herein to date.
FACTUAL AND PROCEDURAL HISTORY
4) This is an action for recovery of No-Fault benefits in accordance with New York State
Insurance Law (Complaint attached as "Exhibit 1"). STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, by way of accepting premiums from the plaintiff, is constrained to provide
No-Fault benefits to KATHRYN FINNEGAN-FINCK ("defendant's insured")(Exhibit 1).
5) KATHRYN FINNEGAN-FINCK's medical providers subsequently submitted proof of
claim to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY totaling $126,870.49 for
the hospital and related care provided to KATHRYN FINNEGAN-FINCK on 3/14/16-
surgery, stay,
3/15/16(Exhibit 1).
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6) Despite receiving these claims for No-Fault benefits, defendant has not issued
reimbursement for such medical services provided and billed to defendant's insured.
7) On 4/04/2018, plaintiff served itsverified Summons and Complaint on defendant and
filed said complaint on 4/19/2018 with the Court(Exhibit 1).
8) Issue was joined on 5/04/2018 (Answer attached as "Exhibit 1").
9) On 6/18/2018, plaintiffsent defendant itssupplemental discovery demands and its
responses to defendant's discovery demands (attached as "Exhibit 2").
10) On 9/05/18, after not receiving any discovery responses from defendant, plaintiff sent
letter"
defendant a "good faith to remind them that the requested discovery remained outstanding in its
entirety and needed to be provided and/or objected to within 20 days (attached as "Exhibit 2").
11) Defendant has failed to preserve itsobjection in accordance with the CPLR and as such is
precluded and foreclosed from challenging plaintiff s interrogatories and discovery and inspection.
12) To date, plaintiffhas only received 1 response from defendant; in the form of a one page,
"Verified Response to Notice to Admit", which was essentially a blanket objection and denial (attached as
"Exhibit 3").
13) Consequently, plaintiffmoves to strike the Answer for itsfailure to provide plaintiffwith
any meaningful discovery.
POINT I
DEFENDANT FAILED TO TIMELY RESPOND TO
PLAINTIFF'S DISCOVERY DEMANDS
14) Plaintiff's demands seek only material and necessary information as that term is
understood under CPLR 3101 and NY caselaw. The Complaint alleges submission of claims and non-
payment of same (Exhibit I). The Answer has denied receipt of plaintiff'sbills, itcontains no new
factual allegations, and provides no notice of any transaction or occurrence that defendant intends to
prove (Exhibit 2). The Answer also raises numerous affirmative defenses, a precondition of which isa
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timely denial of claim (Exhibit 2). Plaintiff's interrogatories and demand for discovery and inspection
seek relevant and material information based upon the issues identified in the pleadings.
15) Service of papers on an attorney is complete upon mailing Cl)Llt 2103(_b)L2). The
discovery demands were served upon defense counsel (Exhibit 2). A properly executed affidavit of
service raises a presumption that a proper mailing occurred, and a mere denial of receipt isnot enough to
rebut this presumption Engel v 1 ichtennan, 62 NY2d 943 (1984).
16) In thiscase, plaintiffrespectfully submits that defendant has willfully failed to comply
with the CPLR and NY Case law by failing to timely respond or interpose objections to plaintiff's
supplemental discovery demands. (See plaintiff's supplemental discovery demands annexed hereto as
plaintiff's"Exhibit 2").
17) Plaintiff sent itssupplemental discovery demands to defendant on 6/18/2018. (See
affidavit of service attached to plaintiff's supplemental discovery demands annexed hereto as plaintiff's
"Exhibit 2"). Deponent statesthat she personally placed said supplemental discovery demands
concerning the above-captioned parties in a sealed, properly addressed envelope with sufficient postage.
Deponent personally confirmed that the aforementioned discovery demands were indeed included in said
control"
envelope. Deponent then delivered the envelope into the "exclusive of the United States Postal
Service. Said properly executed affidavit of service raises a presumption that a proper mailing occurred.
Thus, defendant had twenty (20) days to respond to said demands.
18) Plaintiff then extended defendant's time to respond to the supplemental discovery
letter" letter"
demands by sending a "good faith (See plaintiff's "good faith annexed hereto as Plaintiff's
letter"
"Exhibit 3"). Plaintiff sent its"good faith to defendant on 9/05/2018. (See affidavit of service
letter"
attached to plaintiff's"good faith annexed hereto as Plaintiff's "Exhibit 3"). This correspondence
regarding discovery reminded defendant that discovery was stilloutstanding in itsentirety and should be
provided and/or objected to within 20 days of the letter.Deponent states that he personally placed said
letter"
"good faith concerning the above-captioned parties in a sealed, properly addressed envelope with
letter"
sufficient postage. Deponent personally confirmed that the aforementioned "good faith was indeed
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control"
included in said envelope. Deponent then delivered the envelope into the "exclusive of the
United States Postal Service. Said properly executed affidavit of service raises a presumption thata
proper mailing occurred. Thus, defendant had another 20 days to respond to said demands.
19) To date, plaintiffhas only received 1 discovery response from defendant, a one page, two
paragraph "Verified Response to Notice to Admit", which was essentially a blanket objection and denial
of plaintiff'sNotice to Admit (See defendant's response annexed hereto as "Exhibit 3").
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POINT II
DEFENDANT FAILED TO TIMELY PRESERVE ITS OBJECTION TO
PLAINTIFF'S INTERROGATORIES AND THEREFORE IS FORECLOSED
FROM CHALLENGING SAID INTERROGATORIES
20) Pursuant to CPI R 3 133 (a),within twenty days after service of interrogatories, the party
upon whom they are served shall serve upon each of the parties a copy of the answer to each
interrogatory, except one to which the party objects, in which event the reasons forthe objection shallbe
stated with reasonable particularity.
21) Failure to timely object to propriety of interrogatories forecloses a party from challenging
the interrogatories, except where the objection involves a matter privileged under CPLR 3 103. Failure to
timely object to propriety of any a discovery demand forecloses a party from challenging the demand,
except where demand ispalpably improper or involves privileged material under CPLR 3 103. Pursuant
to CP1.R 3133 (a), within twenty days after service of interrogatories, the party upon whom they are
served shall serve upon each of the parties a copy of the answer to each interrogatory, except one towhich
the party objects, in which event the reasons forthe objection shall be stated with reasonable particularity.
22) Failure to timely object to propriety of any discovery demand forecloses a party from
challenging the demand, except where demand ispalpably improper or involves privileged material under
CPLR 3103 see Fausto v Cits of New York 17 AD3d 520 (2d Dep't 2005); Marino v County of Nassau.
16 AD3d 628 (2005); All 13oro Psvehological Servs.. P.C. v Allstate Ins.Co., 40 Misc 3d 131[A] (App
Term, 2d, 11th & 13th Jud Dists 2013).
23) In this case, plaintiff served itssupplemental demands for interrogatories on 6/18/2018.
(See plaintiff's supplemental demands for interrogatories annexed hereto as plaintiff's"Exhibit 2).
Having failed to comply with CPLR § 3133 (a), by failing to timely respond to plaintiff's supplemental
demands and by failing to object to plaintiff's interrogatories within the extended time period referenced
letter" letter"
in the "good faith (i.e.20 days from 9/05/18; See plaintiff's "good faith annexed hereto as
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Plaintiff's "Exhibit 3"), defendant is now foreclosed from challenging plaintiff'sdemands for
interrogatories see 1 austo v CitLof New York,supra.
24) Itis respectfully submitted that defendant has failed to demonstrate that plaintiff's
demands are protected by confidentiality, privileged information, or that plaintiffs demands are palpably
improper. Accordingly, pursuant to CPLR 3 133 (a) and Fausto, defendant should be foreclosed from
challenging plaintiff s interrogatories and must be compelled to answer said interrogatories or itsanswer
must be stricken.
POINT III
DEFENDANT FAILED TO RESPOND TO PLAINTIFF'S DEMAND FOR DISCOVERY AND
INSPECTION
25) As isthe case with plaintiff's interrogatories, defendant has failed to provide responses to
the plaintiff's notice of Discovery and Inspection (See Plaintiff s Supplemental Notice or Discovery and
Inspection annexed hereto as Plaintiff's "Exhibit 2).
26) As is the case with plaintiff's interrogatories, this demand seeks to discover information
that ismaterial and relevant to the issues raised in the pleadings ("Exhibit 1").
27) Having failed to comply with CPLR 3122Laj, by failing to timely respond to plaintiff's
supplemental demand and by failing to object to plaintiff's demand within the extended time period
letter" letter"
referenced in the "good faith (i.e.20 days from 9/05/18; See plaintiff s "good faith annexed
hereto as Plaintiff's "Exhibit 2"), defendant is now foreclosed from challenging plaintiff's Notice for
Discovery and Inspection see Fausto v City of New York, supra.
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POINT IV
STRIKING THE ANSWER IS TIIE PROPER REMEDY
1) The determination whether to strike a pleading forfailure to comply with court-ordered
court'
disclosure lies within the sound discretion of the trial Orgel v Stewart Tit. Ins.Co., 91 AD3d
922, 923 (2012) and Giano v loannon, 78 AD3d 768, 770 (2010); see Kibl v Pfeffer, 94 NY2d 1 18,
123 (1999).
2) The nature and degree of the penalty to be imposed pursuant to CPLR 3 126 against a
party who "refuses to obey an order for disclosure or willfully fails to disclose information which the
disclosed"
court finds ought to have been isa matter within the discretion of the court Kibl v Preffer,
94 NY2d 118, 123 (1999).
3) A court'sdetermination of whether to impose sanctions for conduct which frustrates the
disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, isnot
disturbed on appeal absent an improvident exercise of discretion see Dynasty Med.. P.C. v Mercury
Cas. Ins. Co., 51 Misc 3d 131(A) (App Term 2016)(citing Savin v Brooklyn Mar. Park Dev. Corp., 61
AD3d 954 (2009)).
28) In thiscase, itis respectfully submitted that the prudent remedy for a defendant's willful
failure to answer interrogatories and produce documents isfor the Court to strike the Answer. As stated
above, plaintiffrespectfully submits that defendant is indefault by failing to timely comply with
plaintiff's supplemental discovery demands. Defendant's refusal to comply with plaintiff'ssupplemental
discovery demands frustrates and prejudices plaintiff's abilityto prosecute thismatter and prepare for
trial. Accordingly, an Order striking the the Answer and entering a judgment in favor of the plaintiff is
warranted.
29) In the alternative, defendant should be precluded from offering any evidence or testimony
at the trialof thisaction with reference to the items sought within said discovery. Or, in the alternative,
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defendant to answer plaintiff'ssupplemental discovery demands within twenty (20) days
compelling
herein.
30) No previous application for the relief sought herein has been made.
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WHEREFORE, it is respectfully requested that: judgment be granted to the plaintiff for payment
of the medical bills totaling $126,870.49, plus statutory
interest and statutory attorney's fees; or in the
alternative, that defendant should be precluded from offering any evidence or testimony at the trial of this
action with referenced to the items sought within said discovery and for such other and further relief that
this Court deems just and proper.
Dated: October 12, 2018
LEWI & BAGLIO, LLP
By: WILLIAM A. BENSON, ESQ.
Attorneys for the Plaintiff
1100 Shames Drive
Suite 100
Westbury, New York 11590
Tel: (516) 307-1777
Fax: (516) 307-1770
L&B File No.: 1809-01 QS
To:
NICOLINI, PARADISE, FERRETTI &
SABELLA
Attorney for the Defendant
114 Old Country Road, Suite 500
Mineola, NY 11501
(516) 741-6355
Defendant's File No.: D18-0182MM(I)
Defendant's Claim No.: 326W73552-
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EXHIBIT 1
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SUPREME COURT OF THE STATE OF NEW YORK Index No.
COUNTY OF QUEENS
KATHRYN FINNEGAN-FINCK SUMMONS
Plaintiff,
Plaintiff's Residence:
- Against - KATHRYN FINNEGAN-FINCK
187 N 3RD STREET
STATE FARM MUTUAL AUTOMOBILE BETHPAGE, NY 11714
INSURANCE COMPANY,
Plaintiff designates Queens County as the place
Defendant. of trial. The basis of this designation is
Defendant transacts business in Queens County
NO-FAULT ACTION
To the above named defendant:
YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the State of New York, County
of QUEENS at the office of the Clerk of said Court at 88-11 Sutphin Boulevard, Jamaica, NEW
YORK, 11435, within the time provided by the law as noted below and to file your answer to the
annexed complaint with the Clerk: upon your failure to answer, judgmêñt will be taken against you for the
relief sought in the complaiñt, totaling $150,000.00 and interest and for Attorneys fees, together with
costs and disbursements of this action.
Dated: February 28, 2018
Defendant's Address: LE & AGLIO, LLP
STATE FARM MUTUAL AUTOMOBILE By: Joseph G. Giordano
INSURANCE COMPANY Attorneys for the Plaintiff
100 STATE FARM PLACE - BLDG #1 1100 Shames Drive
BALLSTAN SPA, NY 12020 Suite 100
Westbury, New York 11590
Tel: 307- 1777
(516)
Fax: 307- 1770
(516)
L&B File No.: 1809-01
CLAIM No.: 326W73552
The law provides that:
(a) If this summons is served by its delivery to you personally within the City of New York,
you must appear and answer within TWENTY days after such service; or
(b) If this summons is served by delivery to any person other than you personally, or is
served outside the City of New York, or by publication, or by any means other than personal delivery to
you within the City of New York, you are allowed THIRTY days after the proof of service thereof is filed
with the Clerk of this Court within which to appear and answer.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.
KATHRYN FINNEGAN-FINCK
Plaintiff, VERIFIED COMPLAINT
-Against-
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendant.
Plaintiff KATHRYN FINNEGAN-FINCK, alleges:
FIRST CAUSE OF ACTION
1) Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY is an insurance
company licensed and authorized to do business in the State of New York.
2) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY transacts business in the City
of New York.
3) KATHRYN FINNEGAN-FINCK was injured in an automobile accident, and as such, is a "covered
person"
as defined by section 5102 of New York State Insurance Law.
4) At the time of the accident, KATHRYN FINNEGAN-FINCK was covered by an existing insurance
policy, which contained benefits under the New York State No-Fault Law and was issued by STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
5) As a result of said accident, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
was obligated to provide No-Fault benefits to KATHRYN FINNEGAN-FINCK.
6) As a result of that accident, KATHRYN FINNEGAN-FINCK incurred medical expenses and out of
pocket expenses in the amount of $150,000.00.
7) Upon information and belief, pursuant to New York State No-Fault Law, a claim for payment for
such expense was submitted to STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY that is reimbursable and covered under New York State Insurance Law, totaling
$150,000.00.
8) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY has paid $0.00 toward said
bill,leaving a balance due of $150,000.00 and that isthe reason for this lawsuit.
9) KATHRYN FINNEGAN-FINCK is entitled to payment of the bill PLUS interest at the rate of TWO-
PERCENT (2%) per month computed from THIRTY (30) days after the date the claim was submitted
to the defendant until the amount due ispaid in full,pursuant to 11 NYCRR 65-3.9.
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SECOND CAUSE OF ACTION
10) Plaintiff repeats, reiterates and re-alleges the allegations set forth in the prior paragraphs, as if fully
set forth at length herein.
11) KATHRYN FINNEGAN-FINCK retained attorneys LEWIN & BAGLIO, LLP to collect the above
overdue No-Fault benefits and pursuant to 11 NYCRR 65-3.10, LEWIN & BAGLIO, LLP is entitled
to recover attorneys fees, calculated at TWENTY-PERCENT (20%) of the TOTAL of the overdue
claim PLUS statutory interest thereupon, with a maximum fee of $1360.00 and a minimum fee of
$80.00 per each claim.
WHEREFORE, KATHRYN FINNEGAN-FINCK demands judgment against defendant for
payment of the bill in full totaling $150,000.00 and interest on the First Cause of Action and for
Attorneys fees on the Second Cause of Action together with costs and disbursements of this action per
each claim.
LEWIN & BAGLIO, LLP
Attorneys for the Plaintiff
1100 Shames Drive
Suite 100
Westbury, New York 11590
Tel: 307- 1777
(516)
Fax: 307- 1770
(516)
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
KATHRYN FINNEGAN-FINCK
Plaintiff,
VERIFICATION AFFIDAVIT
-Against-
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendant.
STATE OF N
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FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No. 704733/18 COUNTY OF QUEENS NOTICE OF MOTION KATHRYN FINNEGAN-FINCK Return Date: 11/08/2018 Plaintiff' INSURANCE ACTION -Against- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant. Counselors: PLEASE TAKE NOTICE, that upon the annexed affirmation of William A. Benson, Esq., dated October 12, 2018, upon the pleadings and proceedings heretofore had herein, the undersigned will move 8th this Court, IN Queens Supreme Court on the day Of November, 2018 at 9:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard for an Order: 1) Pursuant to CPLR § 3133 and CPLR § 3126, striking the Answer for itsfailure to comply with plaintiff's discovery demands; 2) Rendering a judgment by default against defendant in favor of plaintiff for payment of the medical billstotaling $126,870.49, and 3) Directing statutory interest, statutory attorneys fees and costs be granted in favor of plaintiff;and 4) Or in the alternative, pursuant to CPLR § 3124 compelling defendant to answer plaintiff's discovery demands within twenty (20) days herein; 5) Or in the alternative, precluding defendant from offering any evidence or testimony atthe trialof this action with referenced to the items sought within said discovery; and 6) For such other and further relief as to this Court may seem just and proper. L&B File No.: 1809-01 QS 1 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 PLEASE TAKE FURTHER NOTICE that you are required serve upon the undersigned your answering papers no later than seven (7) days before the return day of this application. If services of opposing papers are made by mail, same must be mailed twelve (12) days prior to the return date of this application.(CPLR § 2103). PLEASE TAKE FURTHER NOTICE that in the event service is not made upon the undersigned as set forth in the preceding paragraph, the Court should not read nor hear any opposition set forth the Respondent and in no event give any consideration to same. See. Wallin v. Wallin, 34 by A.D.2d 870 (1970). Dated: October 12, 2018 LEWIN & BAGLIO, LLP By: WILLIAM A. BENSON, ESQ. Attorneys for the Plaintiff 1100 Shames Drive Suite 100 Westbury, New York 11590 Tel: (516) 307-1777 Fax: (516) 307-1770 L&B File No.: 1809-01 QS To: NICOLINI, PARADISE, FERRETTI & SABELLA Attorney for the Defendant 114 Old Country Road, Suite 500 Mineola, NY 11501 (516) 741-6355 Defendant's File No.: D18-0182MM(1) Defendant's Claim No.: 326W73552- L&B File No.: 1809-01 QS 2 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No. 704733/18 COUNTY OF QUEENS AFFIRMATIONIN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE KATHRYN FINNEGAN-FINCK THE ANSWER Plaintiff, Return Date: 11/08/2018 -Against- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant. WILLIAM A. BENSON, ESQ., an attorney admitted to practice in the Courts in the State of New York affirms that the following statements are true under the penalties of perjury: 1) I am an associate of the law firm of LEWIN & BAGLIO, LLP, attorneys for plaintiff,and as such, I am fully familiar with the facts and circumstances herein. 2) This Affirmation is respectfully submitted in support of plaintiff's various forms of relief as set forth in plaintiff'snotice of motion. 3) This affirmation is made upon personal knowledge, the sources thereof being the official Court records, the filemaintained in the office of LEWIN & BAGLIO, LLP, independent investigations, and the prior proceedings had herein to date. FACTUAL AND PROCEDURAL HISTORY 4) This is an action for recovery of No-Fault benefits in accordance with New York State Insurance Law (Complaint attached as "Exhibit 1"). STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, by way of accepting premiums from the plaintiff, is constrained to provide No-Fault benefits to KATHRYN FINNEGAN-FINCK ("defendant's insured")(Exhibit 1). 5) KATHRYN FINNEGAN-FINCK's medical providers subsequently submitted proof of claim to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY totaling $126,870.49 for the hospital and related care provided to KATHRYN FINNEGAN-FINCK on 3/14/16- surgery, stay, 3/15/16(Exhibit 1). L&B 1809-01 QS File No.: 3 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 6) Despite receiving these claims for No-Fault benefits, defendant has not issued reimbursement for such medical services provided and billed to defendant's insured. 7) On 4/04/2018, plaintiff served itsverified Summons and Complaint on defendant and filed said complaint on 4/19/2018 with the Court(Exhibit 1). 8) Issue was joined on 5/04/2018 (Answer attached as "Exhibit 1"). 9) On 6/18/2018, plaintiffsent defendant itssupplemental discovery demands and its responses to defendant's discovery demands (attached as "Exhibit 2"). 10) On 9/05/18, after not receiving any discovery responses from defendant, plaintiff sent letter" defendant a "good faith to remind them that the requested discovery remained outstanding in its entirety and needed to be provided and/or objected to within 20 days (attached as "Exhibit 2"). 11) Defendant has failed to preserve itsobjection in accordance with the CPLR and as such is precluded and foreclosed from challenging plaintiff s interrogatories and discovery and inspection. 12) To date, plaintiffhas only received 1 response from defendant; in the form of a one page, "Verified Response to Notice to Admit", which was essentially a blanket objection and denial (attached as "Exhibit 3"). 13) Consequently, plaintiffmoves to strike the Answer for itsfailure to provide plaintiffwith any meaningful discovery. POINT I DEFENDANT FAILED TO TIMELY RESPOND TO PLAINTIFF'S DISCOVERY DEMANDS 14) Plaintiff's demands seek only material and necessary information as that term is understood under CPLR 3101 and NY caselaw. The Complaint alleges submission of claims and non- payment of same (Exhibit I). The Answer has denied receipt of plaintiff'sbills, itcontains no new factual allegations, and provides no notice of any transaction or occurrence that defendant intends to prove (Exhibit 2). The Answer also raises numerous affirmative defenses, a precondition of which isa L&B File No.: 1809-01 QS 4 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 timely denial of claim (Exhibit 2). Plaintiff's interrogatories and demand for discovery and inspection seek relevant and material information based upon the issues identified in the pleadings. 15) Service of papers on an attorney is complete upon mailing Cl)Llt 2103(_b)L2). The discovery demands were served upon defense counsel (Exhibit 2). A properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt isnot enough to rebut this presumption Engel v 1 ichtennan, 62 NY2d 943 (1984). 16) In thiscase, plaintiffrespectfully submits that defendant has willfully failed to comply with the CPLR and NY Case law by failing to timely respond or interpose objections to plaintiff's supplemental discovery demands. (See plaintiff's supplemental discovery demands annexed hereto as plaintiff's"Exhibit 2"). 17) Plaintiff sent itssupplemental discovery demands to defendant on 6/18/2018. (See affidavit of service attached to plaintiff's supplemental discovery demands annexed hereto as plaintiff's "Exhibit 2"). Deponent statesthat she personally placed said supplemental discovery demands concerning the above-captioned parties in a sealed, properly addressed envelope with sufficient postage. Deponent personally confirmed that the aforementioned discovery demands were indeed included in said control" envelope. Deponent then delivered the envelope into the "exclusive of the United States Postal Service. Said properly executed affidavit of service raises a presumption that a proper mailing occurred. Thus, defendant had twenty (20) days to respond to said demands. 18) Plaintiff then extended defendant's time to respond to the supplemental discovery letter" letter" demands by sending a "good faith (See plaintiff's "good faith annexed hereto as Plaintiff's letter" "Exhibit 3"). Plaintiff sent its"good faith to defendant on 9/05/2018. (See affidavit of service letter" attached to plaintiff's"good faith annexed hereto as Plaintiff's "Exhibit 3"). This correspondence regarding discovery reminded defendant that discovery was stilloutstanding in itsentirety and should be provided and/or objected to within 20 days of the letter.Deponent states that he personally placed said letter" "good faith concerning the above-captioned parties in a sealed, properly addressed envelope with letter" sufficient postage. Deponent personally confirmed that the aforementioned "good faith was indeed L&B File No.: 1809-01 QS 5 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 control" included in said envelope. Deponent then delivered the envelope into the "exclusive of the United States Postal Service. Said properly executed affidavit of service raises a presumption thata proper mailing occurred. Thus, defendant had another 20 days to respond to said demands. 19) To date, plaintiffhas only received 1 discovery response from defendant, a one page, two paragraph "Verified Response to Notice to Admit", which was essentially a blanket objection and denial of plaintiff'sNotice to Admit (See defendant's response annexed hereto as "Exhibit 3"). L&B File No.: 1809-01 QS 6 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 POINT II DEFENDANT FAILED TO TIMELY PRESERVE ITS OBJECTION TO PLAINTIFF'S INTERROGATORIES AND THEREFORE IS FORECLOSED FROM CHALLENGING SAID INTERROGATORIES 20) Pursuant to CPI R 3 133 (a),within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects, in which event the reasons forthe objection shallbe stated with reasonable particularity. 21) Failure to timely object to propriety of interrogatories forecloses a party from challenging the interrogatories, except where the objection involves a matter privileged under CPLR 3 103. Failure to timely object to propriety of any a discovery demand forecloses a party from challenging the demand, except where demand ispalpably improper or involves privileged material under CPLR 3 103. Pursuant to CP1.R 3133 (a), within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one towhich the party objects, in which event the reasons forthe objection shall be stated with reasonable particularity. 22) Failure to timely object to propriety of any discovery demand forecloses a party from challenging the demand, except where demand ispalpably improper or involves privileged material under CPLR 3103 see Fausto v Cits of New York 17 AD3d 520 (2d Dep't 2005); Marino v County of Nassau. 16 AD3d 628 (2005); All 13oro Psvehological Servs.. P.C. v Allstate Ins.Co., 40 Misc 3d 131[A] (App Term, 2d, 11th & 13th Jud Dists 2013). 23) In this case, plaintiff served itssupplemental demands for interrogatories on 6/18/2018. (See plaintiff's supplemental demands for interrogatories annexed hereto as plaintiff's"Exhibit 2). Having failed to comply with CPLR § 3133 (a), by failing to timely respond to plaintiff's supplemental demands and by failing to object to plaintiff's interrogatories within the extended time period referenced letter" letter" in the "good faith (i.e.20 days from 9/05/18; See plaintiff's "good faith annexed hereto as L&B File No.: 1809-01 QS 7 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 Plaintiff's "Exhibit 3"), defendant is now foreclosed from challenging plaintiff'sdemands for interrogatories see 1 austo v CitLof New York,supra. 24) Itis respectfully submitted that defendant has failed to demonstrate that plaintiff's demands are protected by confidentiality, privileged information, or that plaintiffs demands are palpably improper. Accordingly, pursuant to CPLR 3 133 (a) and Fausto, defendant should be foreclosed from challenging plaintiff s interrogatories and must be compelled to answer said interrogatories or itsanswer must be stricken. POINT III DEFENDANT FAILED TO RESPOND TO PLAINTIFF'S DEMAND FOR DISCOVERY AND INSPECTION 25) As isthe case with plaintiff's interrogatories, defendant has failed to provide responses to the plaintiff's notice of Discovery and Inspection (See Plaintiff s Supplemental Notice or Discovery and Inspection annexed hereto as Plaintiff's "Exhibit 2). 26) As is the case with plaintiff's interrogatories, this demand seeks to discover information that ismaterial and relevant to the issues raised in the pleadings ("Exhibit 1"). 27) Having failed to comply with CPLR 3122Laj, by failing to timely respond to plaintiff's supplemental demand and by failing to object to plaintiff's demand within the extended time period letter" letter" referenced in the "good faith (i.e.20 days from 9/05/18; See plaintiff s "good faith annexed hereto as Plaintiff's "Exhibit 2"), defendant is now foreclosed from challenging plaintiff's Notice for Discovery and Inspection see Fausto v City of New York, supra. L&B File No.: 1809-01 QS 8 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 POINT IV STRIKING THE ANSWER IS TIIE PROPER REMEDY 1) The determination whether to strike a pleading forfailure to comply with court-ordered court' disclosure lies within the sound discretion of the trial Orgel v Stewart Tit. Ins.Co., 91 AD3d 922, 923 (2012) and Giano v loannon, 78 AD3d 768, 770 (2010); see Kibl v Pfeffer, 94 NY2d 1 18, 123 (1999). 2) The nature and degree of the penalty to be imposed pursuant to CPLR 3 126 against a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the disclosed" court finds ought to have been isa matter within the discretion of the court Kibl v Preffer, 94 NY2d 118, 123 (1999). 3) A court'sdetermination of whether to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, isnot disturbed on appeal absent an improvident exercise of discretion see Dynasty Med.. P.C. v Mercury Cas. Ins. Co., 51 Misc 3d 131(A) (App Term 2016)(citing Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 (2009)). 28) In thiscase, itis respectfully submitted that the prudent remedy for a defendant's willful failure to answer interrogatories and produce documents isfor the Court to strike the Answer. As stated above, plaintiffrespectfully submits that defendant is indefault by failing to timely comply with plaintiff's supplemental discovery demands. Defendant's refusal to comply with plaintiff'ssupplemental discovery demands frustrates and prejudices plaintiff's abilityto prosecute thismatter and prepare for trial. Accordingly, an Order striking the the Answer and entering a judgment in favor of the plaintiff is warranted. 29) In the alternative, defendant should be precluded from offering any evidence or testimony at the trialof thisaction with reference to the items sought within said discovery. Or, in the alternative, L&B File No.: 1809-01 QS 9 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 defendant to answer plaintiff'ssupplemental discovery demands within twenty (20) days compelling herein. 30) No previous application for the relief sought herein has been made. L&B 1809-01 QS File No.: 10 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 WHEREFORE, it is respectfully requested that: judgment be granted to the plaintiff for payment of the medical bills totaling $126,870.49, plus statutory interest and statutory attorney's fees; or in the alternative, that defendant should be precluded from offering any evidence or testimony at the trial of this action with referenced to the items sought within said discovery and for such other and further relief that this Court deems just and proper. Dated: October 12, 2018 LEWI & BAGLIO, LLP By: WILLIAM A. BENSON, ESQ. Attorneys for the Plaintiff 1100 Shames Drive Suite 100 Westbury, New York 11590 Tel: (516) 307-1777 Fax: (516) 307-1770 L&B File No.: 1809-01 QS To: NICOLINI, PARADISE, FERRETTI & SABELLA Attorney for the Defendant 114 Old Country Road, Suite 500 Mineola, NY 11501 (516) 741-6355 Defendant's File No.: D18-0182MM(I) Defendant's Claim No.: 326W73552- L&B File No.: 1809-01 QS 11 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 EXHIBIT 1 12 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No. COUNTY OF QUEENS KATHRYN FINNEGAN-FINCK SUMMONS Plaintiff, Plaintiff's Residence: - Against - KATHRYN FINNEGAN-FINCK 187 N 3RD STREET STATE FARM MUTUAL AUTOMOBILE BETHPAGE, NY 11714 INSURANCE COMPANY, Plaintiff designates Queens County as the place Defendant. of trial. The basis of this designation is Defendant transacts business in Queens County NO-FAULT ACTION To the above named defendant: YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the State of New York, County of QUEENS at the office of the Clerk of said Court at 88-11 Sutphin Boulevard, Jamaica, NEW YORK, 11435, within the time provided by the law as noted below and to file your answer to the annexed complaint with the Clerk: upon your failure to answer, judgmêñt will be taken against you for the relief sought in the complaiñt, totaling $150,000.00 and interest and for Attorneys fees, together with costs and disbursements of this action. Dated: February 28, 2018 Defendant's Address: LE & AGLIO, LLP STATE FARM MUTUAL AUTOMOBILE By: Joseph G. Giordano INSURANCE COMPANY Attorneys for the Plaintiff 100 STATE FARM PLACE - BLDG #1 1100 Shames Drive BALLSTAN SPA, NY 12020 Suite 100 Westbury, New York 11590 Tel: 307- 1777 (516) Fax: 307- 1770 (516) L&B File No.: 1809-01 CLAIM No.: 326W73552 The law provides that: (a) If this summons is served by its delivery to you personally within the City of New York, you must appear and answer within TWENTY days after such service; or (b) If this summons is served by delivery to any person other than you personally, or is served outside the City of New York, or by publication, or by any means other than personal delivery to you within the City of New York, you are allowed THIRTY days after the proof of service thereof is filed with the Clerk of this Court within which to appear and answer. L&B File No.: 1809-01 13 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No. KATHRYN FINNEGAN-FINCK Plaintiff, VERIFIED COMPLAINT -Against- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant. Plaintiff KATHRYN FINNEGAN-FINCK, alleges: FIRST CAUSE OF ACTION 1) Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY is an insurance company licensed and authorized to do business in the State of New York. 2) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY transacts business in the City of New York. 3) KATHRYN FINNEGAN-FINCK was injured in an automobile accident, and as such, is a "covered person" as defined by section 5102 of New York State Insurance Law. 4) At the time of the accident, KATHRYN FINNEGAN-FINCK was covered by an existing insurance policy, which contained benefits under the New York State No-Fault Law and was issued by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. 5) As a result of said accident, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY was obligated to provide No-Fault benefits to KATHRYN FINNEGAN-FINCK. 6) As a result of that accident, KATHRYN FINNEGAN-FINCK incurred medical expenses and out of pocket expenses in the amount of $150,000.00. 7) Upon information and belief, pursuant to New York State No-Fault Law, a claim for payment for such expense was submitted to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY that is reimbursable and covered under New York State Insurance Law, totaling $150,000.00. 8) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY has paid $0.00 toward said bill,leaving a balance due of $150,000.00 and that isthe reason for this lawsuit. 9) KATHRYN FINNEGAN-FINCK is entitled to payment of the bill PLUS interest at the rate of TWO- PERCENT (2%) per month computed from THIRTY (30) days after the date the claim was submitted to the defendant until the amount due ispaid in full,pursuant to 11 NYCRR 65-3.9. L&B File No.: 1809-01 14 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SECOND CAUSE OF ACTION 10) Plaintiff repeats, reiterates and re-alleges the allegations set forth in the prior paragraphs, as if fully set forth at length herein. 11) KATHRYN FINNEGAN-FINCK retained attorneys LEWIN & BAGLIO, LLP to collect the above overdue No-Fault benefits and pursuant to 11 NYCRR 65-3.10, LEWIN & BAGLIO, LLP is entitled to recover attorneys fees, calculated at TWENTY-PERCENT (20%) of the TOTAL of the overdue claim PLUS statutory interest thereupon, with a maximum fee of $1360.00 and a minimum fee of $80.00 per each claim. WHEREFORE, KATHRYN FINNEGAN-FINCK demands judgment against defendant for payment of the bill in full totaling $150,000.00 and interest on the First Cause of Action and for Attorneys fees on the Second Cause of Action together with costs and disbursements of this action per each claim. LEWIN & BAGLIO, LLP Attorneys for the Plaintiff 1100 Shames Drive Suite 100 Westbury, New York 11590 Tel: 307- 1777 (516) Fax: 307- 1770 (516) L&B File No.: 1809-01 L&B 1809-01 File No.: 15 of 53 FILED: QUEENS COUNTY CLERK 10/12/2018 07:09 PM INDEX NO. 704733/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS KATHRYN FINNEGAN-FINCK Plaintiff, VERIFICATION AFFIDAVIT -Against- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant. STATE OF N