Keenan v. Fiorentino
| Decision Date | 03 May 2011 |
| Citation | 2011 N.Y. Slip Op. 03806,84 A.D.3d 740,921 N.Y.S.2d 874 |
| Parties | Richard KEENAN, respondent, v. Carl FIORENTINO, appellant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Law Office of Steven G. Fauth, LLC, New York, N.Y. (D. Bradford Sessa of counsel), for appellant.
Sacco & Fillas, LLP, Whitestone, N.Y. (Joseph Randazzo of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Martin, J.), dated September 28, 2010, which denied his motion to dismiss the complaint based upon the plaintiff's failure to comply with his outstanding discovery demands as directed by a conditional order of preclusion dated February 23, 2010.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to dismiss the complaint based upon the plaintiff's failure to comply with the defendant's outstanding discovery demands as directed by a conditional order of preclusion dated February 23, 2010, is granted.
By order dated February 23, 2010, the Supreme Court granted a conditional order precluding the plaintiff from offering evidence of damages at trial unless he complied with the defendant's outstanding discovery demands on or before April 9, 2010. It is undisputed that the plaintiff failed, inter alia, to serve his responses to the notices for discovery and inspection within the relevant time period. Therefore, the conditional order became absolute, precluding the plaintiff from offering evidence of damages at trial ( see Rodriguez v. Zeichner, 50 A.D.3d 999, 1000, 854 N.Y.S.2d 898;Gilmore v. Garvey, 31 A.D.3d 381, 818 N.Y.S.2d 534;Contarino v. North Shore Univ. Hosp. at Glen Cove, 13 A.D.3d 571, 572, 786 N.Y.S.2d 326). To avoid the adverse impact of the conditional order of preclusion, the plaintiff was required to demonstrate a reasonable excuse for his failure to comply and a potentially meritorious cause of action ( see Panagiotou v. Samaritan Vil., Inc., 66 A.D.3d 979, 980, 886 N.Y.S.2d 806;Callaghan v. Curtis, 48 A.D.3d 501, 502, 852 N.Y.S.2d 275;State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 43 A.D.3d 907, 908, 841 N.Y.S.2d 617). The plaintiff failed to meet this burden. Since the order of preclusion prevented the plaintiff from making out a prima facie case ( see Siler v Lutheran Social Servs. of Metro. N.Y., 10 A.D.3d 646, 648, 782 N.Y.S.2d 93), the defendant's motion to dismiss the complaint should have been granted ( see Bazoyah...
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