Orabi v. George Hildebrandt, Inc.

157 A.D.2d 506, 550 N.Y.S.2d 5, 1990 N.Y. App. Div. LEXIS 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles Ramos, J.), entered on or about January 31, 1989, which denied defendants’ motions for summary judgment and granted plaintiffs’ cross motion for additional time to file a bill of particulars, on condition that $500 for disbursements and counsel fees be paid to each moving defendant, unanimously reversed, on the law and facts, plaintiffs’ cross motion is denied and defendants’ motions for summary judgment dismissing the complaint are granted, without costs.

In this personal injury action commenced in November 1985, plaintiffs failed to comply with discovery demands, both in the first instance and after entering into a "so ordered” stipulation by which defendants’ motions for preclusion of all evidence were granted unless discovery was provided within 90 days.

Despite its finding that plaintiffs’ motion in opposition to preclusion and summary judgment—which was submitted more than two months after the preclusion order became final —was "devoid of sufficient excuse to justify the continued failure to furnish the [discovery]”, the LAS Part denied defendants’ motions for summary judgment and granted plaintiffs’ cross motion for additional time on condition that the movants be paid $500 each for disbursements and counsel fees. This was error.

Inasmuch as plaintiffs have failed to make a showing sufficient to excuse their default on the prior preclusion order, they cannot avoid preclusion and summary judgment. (Brusco v St. Clare’s Hosp. & Health Center, 128 AD2d 390, lv denied 70 NY2d 606, appeal dismissed 70 NY2d 692.) Concur—Murphy, P. J., Asch, Kassal and Rosenberger, JJ.