Hamilton v Center for Urban Community Servs.

[*1] Hamilton v Center for Urban Community Servs. 2010 NY Slip Op 51929(U) [29 Misc 3d 133(A)] Decided on November 12, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
.

Emma Hamilton, Plaintiff-Appellant, 570245/10

against

Center for Urban Community Services and Common Ground Times Square, Defendants-Respondents.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Ernest J. Cavallo, J.), dated October 10, 2008, which, upon reargument, granted defendants' motion to preclude plaintiff from offering certain evidence at trial; (2) an order, same court (Barbara Jaffe, J.), dated June 15, 2009, which conditionally granted defendants' motion to dismiss plaintiff's complaint unless plaintiff provided certain disclosure; (3) an order, same court (Arthur F. Engoron, J.), dated September 15, 2009, which granted, on default, defendants' motion to dismiss the complaint; and (4) a judgment, same court and Judge, entered November 10, 2009, dismissing the complaint.

Per Curiam.

Orders, dated October 10, 2008 (Ernest J. Cavallo, J.), and June 15, 2009 (Barbara Jaffe, J.), affirmed, with one bill of $10 costs. Appeals from order, dated September 15, 2009 (Arthur Engoron, J.) and final judgment, entered November 10, 2009 (same Judge), dismissed, without costs, as nonappealable. Contrary to plaintiff's contention, the law of the case doctrine is inapplicable to discretionary disclosure rulings, such as the first and second orders on appeal (see Allstate Ins. Co. v Buziashvili, 71 AD3d 571 [2010]; Kswani v Lutheran Med Ctr.,27 AD3d 424 [2006]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764 [2002]). Moreover, upon our review of the first and second orders on appeal, we conclude that Civil Court providently exercised its discretion in imposing disclosure sanctions on plaintiff based upon her wilful and contumacious conduct, which may be inferred from her repeated and unexplained failure to comply with various disclosure orders (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]).

With respect to the appeals from the third order on appeal and resulting judgment, we note that no appeal lies from a paper entered on default (see Figiel v Met Food, 48 AD3d 330 [2008]). In any event, dismissal of the complaint was warranted in light of plaintiff's long-standing pattern of wilful noncompliance with court orders and disclosure demands (see Goldstein v CIBC World Mkts. Corp., 30 AD3d 217 [2006]). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 12, 2010