Ensley v. Snapper, Inc.

62 A.D.3d 403, 879 N.Y.S.2d 71

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 2009
• Status: Published

Opinion

Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 3, 2008, which conditionally granted defendant Snapper’s motion to preclude plaintiff from offering certain evidence at trial, and order, same court and Justice, entered on or about May 6, 2008, which denied plaintiffs motion to vacate or modify the prior order and precluded the testimony of plaintiffs expert for all purposes, unanimously affirmed, without costs.

Plaintiff failed to comply in a timely fashion with three discovery orders, and failed to offer a reasonable excuse (see Kihl v Pfeffer, 94 NY2d 118 [1999]) or set forth the merits of his claim (see Tejeda v 750 Gerard Props. Corp., 272 AD2d 124 [2000]) when moving to vacate the final, conditional order. Since his counsel was personally present when the earlier order was issued, plaintiff was on notice of it and bound by its provisions (see Matter of Raes Pharm. v Perales, 181 AD2d 58, 61-62 [1992]). Concur—Gonzalez, P.J., Buckley, Catterson, McGuire and Renwick, JJ.