Jones v Green

Jones v Green 2006 NY Slip Op 08063 [34 AD3d 260] November 9, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Regina VanNostrand Jones et al., Appellants-Respondents,
v
Ivan Green, D.D.S., Respondent-Appellant, and M. Marc Liechtung, D.D.S., Respondent.

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Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 1, 2005, which granted in part defendant Green's motion for summary judgment and granted both defendants' motions to dismiss the complaint for plaintiffs' failure to respond to court orders, unanimously affirmed, without costs. Green's cross appeal from so much of the order as exempted a portion of the complaint from summary dismissal unanimously dismissed as academic, without costs.

The motion court providently exercised its discretion in dismissing the complaint because of plaintiffs' long continued pattern of noncompliance with court orders and discovery demands (CPLR 3126), which gave rise to an inference of willful and contumacious conduct (see Goldstein v CIBC World Mkts. Corp., 30 AD3d 217 [2006]). We note that plaintiffs failed to offer any excuse (see Rampersad v New York City Dept. of Educ., 30 AD3d 218 [2006]), much less a reasonable one (Milton v 305/72 Owners Corp., 19 AD3d 133 [2005], lv denied 7 NY3d 778 [2006]), and their claim of inadvertence was not raised before the motion court.

In view of the foregoing, it is unnecessary to analyze the summary judgment disposition, and we decline to do so; we note, however, that there was no record evidence to support the imposition of vicarious liability against defendant Green on the basis of his referral (see Kavanaugh v Nussbaum, 71 NY2d 535, 547-549 [1988]; Sawh v Schoen, 215 AD2d 291, 293 [1995]). Green's success on his motion to dismiss pursuant to CPLR 3126 requires dismissal of his cross appeal (see Merchants T & F, Inc. v Kase & Druker, 19 AD3d 134 [2005]). Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Sweeny, JJ.