Hughes v. Brooklyn Skating, LLC

• Decision Date: 27 August 2014
• Citation: 991 N.Y.S.2d 326,120 A.D.3d 758,2014 N.Y. Slip Op. 05951
• Parties: Barrett HUGHES, etc., et al., appellants, v. BROOKLYN SKATING, LLC, et al., defendants third-party plaintiffs-respondents; Tricorp Amusements, Inc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 758

991 N.Y.S.2d 326

2014 N.Y. Slip Op. 05951

Barrett HUGHES, etc., et al., appellants,

v. BROOKLYN SKATING, LLC, et al., defendants third-party plaintiffs-respondents;Tricorp Amusements, Inc., third-party defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 27, 2014.

The Cochran Firm, New York, N.Y. (Paul A. Marber, Joseph S. Rosato, and Gerard A. Lucciola of counsel), for appellants.

Cruser, Mitchell & Novitz, LLP, Farmingdale, N.Y. (Beth S. Gereg of counsel), for defendants third-party plaintiffs-respondents.

Charles J. Siegel, New York, N.Y. (Loretta J. Hottinger of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 4, 2012, which denied their motion to restore the action to the active calendar and granted the cross motion of the defendants Brooklyn Skating, LLC, and Empire Roller Rink Center, joined in by the third-party defendant, Tricorp Amusements, Inc., to dismiss the complaint, and (2) so much of an order of the same court dated January 17, 2013, as, in effect, denied that branch of the plaintiffs' motion which was to vacate a conditional order of preclusion of the same court dated April 24, 2009.

ORDERED that the order dated June 4, 2012, is affirmed; and it is further,

ORDERED that the order dated January 17, 2013, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

In this action seeking damages for personal injuries, the Supreme Court issued multiple orders directing the parties to comply with certain discovery demands. On April 24, 2009, a conditional preclusion order directed that discovery be provided within 30 days, or the plaintiffs would be “automatically precluded.” The plaintiffs failed to timely comply with this order. On or about December 9, 2009, the action was marked “Other Final Disp. Pre Note.” More than two years later, the plaintiffs moved to restore the action to the court's calendar. The court denied the plaintiffs' motion and granted the cross motion of the defendants Brooklyn Skating, LLC, and Empire Roller Rink Center, joined in by the third-party defendant, Tricorp Amusements, Inc. (hereinafter collectively the respondents), to dismiss the complaint. The plaintiffs then moved, inter alia, to vacate the conditional preclusion order, and the Supreme Court denied that branch of the motion.

A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order ( see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 917 N.Y.S.2d 68, 942 N.E.2d 277; Wei Hong Hu v. Sadiqi, 83 A.D.3d 820, 821, 921 N.Y.S.2d 133). As a result of the plaintiffs' failure to timely comply with the conditional order of preclusion, that conditional order became absolute ( see Archer Capital Fund, L.P. v. GEL, LLC, 95 A.D.3d 800, 801, 944 N.Y.S.2d 179; Keenan v. Fiorentino, 84 A.D.3d 740, 921 N.Y.S.2d 874; Wei Hong Hu v. Sadiqi, 83 A.D.3d at 821, 921 N.Y.S.2d 133; Panagiotou v. Samaritan Vil.,...