Abraham v Wood

[*1] Abraham v Wood 2007 NY Slip Op 52000(U) [17 Misc 3d 132(A)] Decided on October 1, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 30, 2007; it will not be published in the printed Official Reports.

Decided on October 1, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-880 Q C.

Sylvanie Abraham, Respondent,

-and-


Zia Castillant and Cachenert Destil, Plaintiffs,

against

Kirk M. Wood, Defendant,

-and-

Johnson Calixte, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 2, 2006. The order denied defendant Johnson

Calixte's motion to dismiss the complaint, insofar as asserted against him by plaintiff Sylvanie Abraham, based upon an order of preclusion.

Order reversed without costs, motion by defendant Johnson Calixte granted and [*2]complaint, insofar as asserted by plaintiff Sylvanie Abraham as against defendant Johnson Calixte, dismissed.

In this personal injury action stemming from a motor vehicle accident, the court below erred in denying defendant Johnson Calixte's motion to dismiss the complaint, insofar as asserted against him by plaintiff Sylvanie Abraham, based upon a conditional order of preclusion that had become absolute upon her failure to comply with its terms (see Michaud v City of New York, 242 AD2d 369 [1997]). In order to obtain relief from these terms, which operated to bar her from proving the extent of her injuries and, therefore, a prima facie case, plaintiff Sylvanie Abraham, as the precluded party, was required to demonstrate a reasonable excuse for failing to comply with the order and the existence of a meritorious cause of action (see e.g. Echevarria v Pathmark Stores, Inc., 7 AD3d 750 [2004]; Bhatt v Travelers Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50528[U] [App Term, 2d & 11th Jud Dists]; Moona v Double A Prop. Assoc. - Turner, 6 Misc 3d 136[A], 2005 NY Slip Op 50243[U] [App Term, 2d & 11th Jud Dists]). Abraham failed to make any such showing, merely averring, by counsel, that she had moved, and therefore lost contact with her attorney, and, without submitting any further medical evidence, that she had suffered a bulging or herniated disc in the subject automobile accident.

Abraham's move and failure to keep in contact with counsel or notify counsel of her whereabouts were so markedly prejudicial to the litigation of her case that her counsel requested to be relieved, and the court was inclined to grant this request. Abraham has offered no explanation at any point for these circumstances, and the mere fact that she subsequently reappeared is not a reasonable excuse (see Palermo v County of Nassau, 266 AD2d 365 [1999]; Guang Jing Chen v Goldstein, 246 AD2d 407 [1998]). Nor did she make the required showing of a meritorious cause of action. Abraham's counsel merely pointed to the allegations contained in the bill of particulars, which was not verified by Abraham, and asserted that Abraham's injury met the serious injury threshold of Insurance Law § 5102 (d). Abraham submitted no affidavit or any kind of medical evidence that might demonstrate merit to her contention that she suffered a serious injury (see Sarot v Yusufov, 301 AD2d 512 [2003]).

Because Abraham has failed to demonstrate a reasonable excuse for her failure to comply with the terms of the conditional order of preclusion, and has further failed to demonstrate that she has a meritorious cause of action, the terms of the conditional order prevent her from establishing a prima facie case (see Koslosky v Khorramian, 31 AD3d 716 [2006]; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, supra). Accordingly, the order is reversed, defendant Johnson Calixte's motion is granted and the complaint, insofar as asserted against Calixte by plaintiff Abraham is dismissed. In view of Calixte's argument upon appeal that the action should also be dismissed as to his codefendant, it should be noted that defendant Kirk M. Wood took no part in the motion practice that resulted in the original conditional order of preclusion, was not included in its terms, and therefore, the order of preclusion is not operative as to him. Nor, for that matter, did defendant Wood appeal the denial of his cross motion to dismiss.

Pesce, P.J., Golia and Rios, JJ., concur.