Koslosky v. Khorramian

31 A.D.3d 716, 818 N.Y.S.2d 463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated June 20, 2005, which, in effect, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The conditional preclusion language in the parties’ so-ordered stipulation became absolute upon the plaintiffs’ failure to comply with its terms (see Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751 [2004]; Hall v Penas, 5 AD3d 549 [2004]; Marrone v Orson Holding Corp., 302 AD2d 371 [2003]; Stewart v City of New York, 266 AD2d 452 [1999]). In order to avoid the adverse impact thereof, the plaintiffs were required to demonstrate a reasonable excuse for their default and the existence of a meritorious claim (see Echevarria v Pathmark Stores, Inc., supra; Hall v Penas, supra; Marrone v Orson Holding Corp., supra; Stewart v City of New York, supra). The plaintiffs failed to make such a showing.

Since the order of preclusion prevents the plaintiffs from establishing a prima facie case, the Supreme Court correctly, in effect, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint (see Echevarria v Pathmark Stores, Inc., supra; Barriga v Sapo, 250 AD2d 795 [1998]).

The plaintiffs’ remaining contentions are without merit. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.