Yang v. Amirshoev

• Docket Number: 2020–07573,Index No. 521892/17
• Decision Date: 28 September 2022
• Citation: 208 A.D.3d 1386,176 N.Y.S.3d 85
• Parties: Xiaomeng YANG, appellant, v. Safarali AMIRSHOEV, respondent.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1386
176 N.Y.S.3d 85

Xiaomeng YANG, appellant,
v.
Safarali AMIRSHOEV, respondent.

2020–07573
Index No. 521892/17

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

Argued—May 2, 2022
September 28, 2022

176 N.Y.S.3d 86

Morgan Levine Dolan, P.C., New York, NY (John Collarafi of counsel), for appellant.

Nancy L. Isserlis (The Zweig Law Firm, P.C., Long Island City, NY [Jonah S. Zweig ], of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

208 A.D.3d 1387

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 14, 2020. The order denied the plaintiff's motion, in effect, to vacate a prior order of the same court dated November 14, 2019, directing dismissal of the complaint and to restore the action to the calendar.

ORDERED that the order dated September 14, 2020, is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on April 23, 2016, when she was struck by a motor vehicle owned and operated by the defendant. Thereafter, the defendant moved pursuant to CPLR 3126 to dismiss the complaint for the plaintiff's repeated failure to appear for a deposition as ordered in a preliminary conference order and a compliance conference order. In an order titled "final pre-note order" dated May 2, 2019, the Supreme Court directed the parties to "schedule neuropysch, neuro and psychiatric [independent medical examinations (hereinafter IMEs)] around the [plaintiff's] scheduled time to be in [the United States] on or before [November 30, 2019]." The May 2, 2019 order further provided that the "DATES CANNOT BE CHANGED WITHOUT COURT APPROVAL" and emphasized in bold face print that "FAILURE TO STRICTLY COMPLY WITH THIS ORDER, WITHOUT LEAVE OF THE COURT, WILL RESULT IN PRECLUSION, THE STRIKING OF A PLEADING AND/OR SANCTIONS AS MAY BE APPROPRIATE." The order also provided that pursuant to CPLR 3126, the failure to comply with the preliminary conference order and the compliance conference order constituted the basis for a finding of willful and contumacious conduct. A copy of the May 2, 2019 order with notice of entry was served upon the attorneys for the plaintiff on June 14, 2019.

176 N.Y.S.3d 87...