Athanasios Gavrielatos v Vienna Hotel

Gavrielatos v Vienna Hotel 2006 NY Slip Op 05587 [31 AD3d 496] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Athanasios Gavrielatos, Appellant,
v
Vienna Hotel, Respondent.

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In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Dillon, J.), dated August 19, 2005, which, upon an order of the same court entered May 25, 2005, conditionally granting the defendant's motion pursuant to CPLR 3126 to dismiss the complaint for failure to comply with discovery, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The conditional order of dismissal became absolute as a result of the plaintiff's failure to comply with its terms (see Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751 [2004]; Hall v Penas, 5 AD3d 549 [2004]; Marrone v Orson Holding Corp., 302 AD2d 371 [2003]; Stewart v City of New York, 266 AD2d 452 [1999]). The plaintiff failed to make a sufficient showing to be relieved of the adverse impact of the conditional order (see Echevarria v Pathmark Stores, Inc., supra; Hall v Penas, supra; Marrone v Orson Holding Corp., supra; Stewart v City of New York, supra). Accordingly, the Supreme Court providently exercised its discretion in entering judgment upon the conditional order, dismissing the complaint (see CPLR 3042 [d]; 3126). Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.