Mozejko v Zullo

[*1] Mozejko v Zullo 2007 NY Slip Op 52201(U) [17 Misc 3d 134(A)] Decided on November 19, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1572 Q C.

Yolanda Mozejko, Appellant,

against

John Zullo, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 16, 2006, deemed an appeal from a judgment of the same court entered June 23, 2006 (see CPLR 5501 [c]). The judgment, entered upon the March 16, 2006 order granting defendant's motion for summary judgment, dismissed the complaint.

Judgment affirmed without costs.

The instant personal injury action arises out of a motor vehicle accident which occurred in December of 2001. The action was commenced in the Supreme Court, Queens County, and was subsequently transferred to the Civil Court, Queens County,
pursuant to CPLR 325 (d). While the action was pending in Supreme Court, in March
of 2004, defendant served plaintiff with a Supplemental Notice for Discovery and Inspection. Plaintiff was directed to provide responses to said Supplemental Notice for Discovery and Inspection in a Compliance Conference Order dated April of 2004. In April and December of 2004, defendant mailed written requests to plaintiff's counsel, referring to the sought-after discovery. After the case was transferred to the Civil Court, defendant moved to compel plaintiff to furnish the documents and information requested in the Supplemental Notice of Discovery and Information. By order dated June 3, 2005, the court granted defendant's motion to the extent of precluding plaintiff from offering any evidence at the time of trial with respect to liability and damages, unless plaintiff provided defendant with the requested discovery within 60 days of the order. After plaintiff failed to do so, defendant moved, in November of 2005, for summary judgment dismissing the complaint. Plaintiff opposed, claiming that law office failure and the [*2]health problems of plaintiff and her mother constituted "extenuating and compelling circumstances" warranting denial of defendant's motion. The court below granted defendant's motion and dismissed the complaint. The instant appeal ensued.

The conditional order of preclusion became absolute upon plaintiff's failure to comply with its terms (see Gilmore v Garvey, 31 AD3d 381 [2006]; Cafaro v Emergency Servs. Holding, Inc., 11 AD3d 496 [2004]; Coleman v Thompson, 5 Misc 3d 136[A], 2004 NY Slip Op 51543[U] [App Term, 2d & 11th Jud Dists]), and plaintiff was therefore precluded from proving her case. In order to avoid the adverse impact of the order,
plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (CPLR 5015 [a]; Felicciardi v Town of Brookhaven, 205 AD2d 495 [1994]; Moona v Double A Prop. Assoc., 6 Misc 3d 136[A], 2005 NY Slip Op 50243[U] [App Term, 2d & 11th Jud Dists]). Neither plaintiff's proffered excuse of the health problems of herself and her mother nor her counsel's claim of law office failure was sufficient to establish a reasonable excuse for the failure to comply with the
court's order. The nature and degree of the penalty to be imposed against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the motion court, and when a party fails to comply with a court's order and frustrates the disclosure scheme set forth in the CPLR, it is well within the court's discretion to dismiss the complaint (CPLR 3126; Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). In the instant case, it cannot be said that the court below improvidently exercised its discretion in granting defendant's motion for summary judgment dismissing the complaint.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 19, 2007