Depo v. Marine Midland Bank

79 A.D.2d 846, 434 N.Y.S.2d 506, 1980 N.Y. App. Div. LEXIS 14249

Opinion

Order unanimously reversed, with costs, motion granted and complaint dismissed. Memorandum: We have held that a party seeking to excuse noncompliance with a preclusion order must meet a “heavy burden” of explanation (Call v Smith, 34 AD2d 1092). Plaintiffs in this case have failed to satisfy that standard and Special Term should not have excused their failure to submit timely answers to defendant’s interrogatories. The only excuse offered is the conclusory statement contained in the affidavit of their attorney of “extensive reorganization and legal problems” and an affidavit of one of the plaintiffs that the plaintiffs’ partnership “suffered severe legal problems” as a result of the bankruptcy of two of its members. The record contains no other explanation or detail of how these events prevented plaintiffs for over six months from producing the information demanded by defendant. The effect of our enforcement of the order of preclusion is to prevent plaintiffs from establishing necessary elements of its cause of action and therefore defendant’s motion for summary judgment dismissing the complaint was appropriate and should have been granted (see Le Frois Foods Corp. v Policy Advancing Corp., 59 AD2d 1013). (Appeal from order of Onondaga Supreme Court—summary judgment.) Present— Cardamone, J. P., Simons, Schnepp, Doerr and Witmer, JJ.