Cimato, Jr. v. State Farm Fire and Casualty Company

Filing 45

ORDER granting 41 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 1/15/2019. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY CIMATO, JR.,
Plaintiff,
v.
16-CV-94A(Sr)
STATE FARM FIRE & CASUALTY COMPANY,
Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #8.

Plaintiff commenced this action in New York State Supreme Court, County
of Erie, on January 6, 2016, claiming breach of a homeowner’s insurance contract and
seeking to enforce the appraisal provision in his contract of insurance after his home
and personal property was damaged by a burst water pipe on January 8, 2014. Dkt.
#1. On June 21, 2014, defendant remitted a partial payment of $109,552.85 for the
loss. Dkt. #1. The matter was removed to this Court on February 4, 2016 based upon
diversity of citizenship. Dkt. #1. Defendant denied plaintiff’s claim on March 14, 2016.
Dkt. #31, p.9.

Currently before the Court is defendant’s motion to compel plaintiff to
submit to deposition. Dkt. #41. In support of the motion, defense counsel declares that

while attempting to schedule plaintiff’s deposition, plaintiff’s counsel informed defense
counsel that plaintiff had not responded to multiple attempts to communicate with
counsel via telephone and email. Dkt. #41-1, ¶ 23.

Plaintiff did not respond to the motion to compel his deposition.

Defendant’s motion is granted. Plaintiff shall submit to a deposition no
later than March 1, 2019. Plaintiff is forewarned that his failure to submit to a deposition
as directed by the Court will result in sanctions pursuant to Rule 37(b)(2) and Rule
41(b) of the Federal Rules of Civil Procedure, including an order precluding plaintiff
from presenting testimony at trial in support of his claim of loss and/or dismissal of the
action.

SO ORDERED.

DATED:

Buffalo, New York
January 15, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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