DECISION AND ORDER
Judge: JOSEPH J. MALTESE
Upon the foregoing papers, (1) the petition for a temporary stay (Seq. No. 001) is granted to the extent indicated; (2) respondents' cross motion (Seq. No. 003) to dismiss the proceeding as jurisdictionally defective is denied;
To the extent relevant, this action arises from a motor vehicle accident that occurred on January 10, 2006. It is alleged that at the time of the accident, the decedent, Mariana Edkins, was a passenger in an automobile operated by nonparty Josephine DiDonato and owned by nonparty Giacomo DiDonato, when the DiDonato vehicle was struck by a vehicle operated by nonparty John L. Sambuco and owned by nonparty Denise L. Gillott, thereby inflicting the injuries which purportedly caused the death of respondents' daughter. Respondents have settled their claims as against the owners and operators of the vehicles involved in the subject accident, and presently seek to recover additional damages for the injury and death of their daughter pursuant to the arbitration provision of the $500,000.00 supplemental uninsured/underinsured motorist (hereinafter "SUM") endorsement of the insurance policy issued to them by the Insurance Company of the State of Pennsylvania (Petitioner's Exhibit "A").
In seeking to stay arbitration in order to permit discovery, petitioner contends that depositions (i.e., Examinations Under Oath) have yet to be conducted, and that medical authorizations concerning the injury and death of respondents' decedent remain outstanding. In this regard, petitioner points to the provisions of its SUM endorsement, which requires its insureds to provide "the full particulars of the nature and the extent of the injuries, treatment, and other details [needed] to determine the SUM amount payable" (Petitioner's Exhibit "C" p 2). In response, respondents have cross-moved
CPLR 3020(d)(3) provides that "if the party is a foreign corporation... or if all the material allegations of the pleading are within the personal knowledge of an agent or the attorney, the verification may be made by such agent or attorney" (see Matter of Tenneriello v. Board of Elections, 63 N.Y.2d 700 ). Here, petitioner has submitted the affidavit of its Vice President attesting that it is a foreign (
Turning to the issue of discovery, the application for a stay (Seq. No. 001) asserts that petitioner's prior requests to obtain an authorization for, e.g., the autopsy report, and to conduct an Examination Under Oath ("EUO") of either respondent remain outstanding, and that the SUM arbitration cannot fairly proceed without them (Petitioner's Exhibits "B", "D"). However, in support of their separate motion to impose costs and sanctions on the petitioner (Seq. No. 002), respondents assert that the deposition of a non-party witness, Josephine DiDonato, was conducted by petitioner without leave of court
In further support of their request for sanctions, respondents submit the affidavits of Mary Ann Edkins and Charles Edkins, each stating that due to the acts of petitioner's attorney, they were never afforded an opportunity to attend Ms. DiDonato's deposition describing the final moments of their daughter's life (Respondents' Exhibits "G", "H"). Finally, respondents seek to preclude Ms. DiDonato's deposition transcript from being admitted in the arbitration proceeding pursuant to CPLR 3126(2).
In opposition to the motion for sanctions, petitioner maintains that respondents (1) failed to file a demand for SUM arbitration with the American Arbitration Association, and (2) never objected to the subpoena calling for the non-party deposition. Petitioner further denies receipt of the aforementioned "speed memo", and denies knowledge of the Edkins' purported interest in appearing at the deposition. In the alternative, petitioner has cross-moved pursuant to CPLR 408 for leave to conduct the non-party deposition of Josephine DiDonato nunc pro tunc, and to allow the deposition transcript to be admitted in the arbitration proceeding.
CPLR 3102(c) provides that before an action or proceeding is commenced, disclosure "to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order"
Here, while the examination of the surviving occupant of the host vehicle, Ms. DiDonato, was otherwise warranted (see Matter of State Farm Mut Auto Ins Co v. Wernick, 90 AD2d at 519), the fact that petitioner improperly proceeded with her deposition on January 18, 2008 during the pendency of these motions and without the leave of court, provides this Court with little or no reason to sanitize petitioner's misdeeds by granting its request for nunc pro tunc relief. Still, the nature and degree of any penalty to be imposed pursuant to CPLR 3126 lies within the court's discretion (see e.g. Brown v. United Christian Evangelistic Assn, 270 A.D.2d 378, 379 [2
Finally, respondents have failed to demonstrate that petitioner intended to waive its policy rights to obtain disclosure. Accordingly, the arbitration will be stayed 90 days during which respondents are directed to provide petitioner any and all authorizations necessary to obtain relevant medical records and a copy of the autopsy report pertaining to their decedent, and to appear for such EUOs as may be required by their insurance contract (see e.g. Matter of NY Cent Mut Fire Ins Co v. Serpico, 45 AD3d at 598-599; Matter of State Farm Mut Auto Ins Co v. Goldstein, 34 AD3d at 824-825; Matter of State Farm Mut Auto Ins Co v. Bautista, 11 A.D.3d 471, supra).
Accordingly, it is hereby:
ORDERED that the supplementary underinsured motorist arbitration is stayed ninety (90) days from the date hereof; and its is further
ORDERED that respondents are directed to provide petitioner forthwith with any and all authorizations necessary to obtain relevant medical records and a copy of the autopsy report pertaining to the deceased, Mariana Edkins; and it is further
ORDERED that respondents are directed to appear for Examinations Under Oath at a mutually convenient time and place, but in no event later than forty-five (45) days after the service upon them of a copy hereof, with notice of entry; and it is further
ORDERED that the previously unresolved branches of respondents' cross motion are denied; and it is further
ORDERED that respondents' motion for sanctions is granted to the extent that petitioner is precluded from admitting the deposition transcript of non-party witness Josephine DiDonato at the arbitration proceeding; and it is further
ORDERED that the balance of the above motion is denied; and it is further
ORDERED that petitioner's request for leave to conduct the deposition of non-party witness Josephine DiDonato nunc pro tunc is also denied.