Gonzalez v. Paniccioli

174 A.D.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1991
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Krausman, J.), dated November 28, 1989, which granted the defendants’ motion to dismiss the complaint.

Ordered that the order is affirmed, without costs or disbursements.

We find that the Supreme Court did not improvidently exercise its discretion in dismissing the complaint due to the plaintiffs’ failure to disclose (see, CPLR 3126). A preliminary conference order dated October 18, 1985, directed the infant plaintiff to submit to a physical examination within 60 days and to appear for an examination before trial on December 3, 1985. The infant plaintiff failed to appear on those dates and on subsequent dates to which the matter was adjourned, notwithstanding three court orders issued over the course of three years.

According to his counsel, the whereabouts of the infant plaintiff were unknown in that he had been taken to Puerto Rico by his mother, who had not been in contact with counsel. That the infant plaintiff has made himself unavailable does not preclude the imposition of sanctions for failure to comply with discovery (see, Reitte v Entermy Cab Corp., 162 AD2d 259; Moriates v Powertest Petroleum. Co., 114 AD2d 888; Foti v Suero, 97 AD2d 748; cf., Rosner v Blue Channel Corp., 131 AD2d 654). The infant plaintiff’s three-year absence and consequent violations of several court orders was sufficient to find a willful failure to comply with discovery. Thompson, J. P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.