O'Berry v Gelco Corp.

O'Berry v Gelco Corp. 2015 NY Slip Op 04422 Decided on May 26, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 26, 2015
Mazzarelli, J.P., Acosta, Renwick, Manzanet-Daniels, Feinman, JJ.
15224N 300936/12

[*1] Ife-Marilyn O'Berry, Plaintiff-Respondent, -

v

Gelco Corp., et al., Defendants-Appellants.

Winget, Spadafora & Schwartzberg, LLP, New York (Harris B. Katz of counsel), for appellants.

Fein & Jakab, New York (Peter Jakab of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 22, 2014, which, to the extent appealed from, denied defendants' motion to vacate the note of issue and compel certain discovery, unanimously affirmed, without costs.

The denial of defendants' motion to compel the deposition testimony of defendant Abdou, thereby effectively precluding him from testifying at trial, was a provident exercise of the motion court's discretion. Defendants failed to give a reasonable excuse for their disobedience of two compliance conference orders warning the parties that failure to comply would result in preclusion (see S.R. Garden City, LLC v Magnacare, LLC, 114 AD3d 925, 926 [2d Dept 2014]; see also Jones v Green, 34 AD3d 260, 261 [1st Dept 2006]).

The motion court providently exercised its discretion in declining to vacate the note of issue, even though discovery remained outstanding (see e.g. May v American Red Cross, 282 AD2d 285 [1st Dept 2001]).

Because the appellate record does not include a bill of particulars purportedly alleging neurological injuries, this Court cannot meaningfully review defendants' contention that the motion court erred in refusing to compel plaintiff to submit to a neurological IME (see UBS Sec. LLC v Red Zone LLC, 77 AD3d 575, 579 [1st Dept 2010], lv denied 17 NY3d 706 [2011]).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2015

CLERK