Sosa v. Tudor Place Associates

55 A.D.3d 311, 865 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Allison Y. Tuitt, J.), entered August 27, 2007, which, to the extent appealable, granted defendants’ motion to dismiss the complaint and denied plaintiff’s motion to renew earlier orders of preclusion, unanimously affirmed, without costs. Order, same court and Justice, entered on or about December 24, 2007, which, to the extent appealable, can be construed as denying plaintiff’s motion to renew the August 27 order, unanimously affirmed, without costs.

Dismissal of the complaint is appropriate where a plaintiff repeatedly and willfully disobeys court orders for discovery (see Jones v Green, 34 AD3d 260 [2006]). Since plaintiff herein repeatedly failed to schedule or appear for a medical examination, it was not an improvident exercise of discretion for the court to preclude medical testimony and dismiss the complaint. Without this evidence, plaintiff is unable to establish damages at trial. Concur—Lippman, EJ., Gonzalez, Nardelli, Acosta and DeGrasse, JJ.