Coleman v Thompson

[*1] Coleman v Thompson 2004 NY Slip Op 51543(U) Decided on December 8, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1717 Q C

LATOYA COLEMAN, Respondent,

against

ANTHONY R. THOMPSON, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered on July 22, 2003, which denied his motion for summary judgment dismissing the complaint.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

The so-ordered stipulation entered into between the parties, requiring plaintiff to appear for a deposition on March 6, 2002 or be precluded from testifying at trial, functioned as a conditional order of preclusion which became absolute upon plaintiff's failure to comply (see Siltan v City of New York, 300 AD2d 298 [2002]; Goldsmith
Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; Tirone v Staten Is. Univ. Hosp., 264 AD2d 415 [1999]). Since plaintiff did not oppose defendant's motion, and hence has failed to establish an excusable default and meritorious action, she may not be relieved from the adverse effect of the stipulation (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Gholson v County of Nassau, 274 AD2d 450 [2000]; Alphonse v UBJ Inc., 266 AD2d 171 [1999]). Under the circumstances presented, defendant's motion for summary judgment should have been granted. [*2]
Decision Date: December 08, 2004