Unity Manufacturing Corp. v. St. Paul Fire & Marine Insurance

97 A.D.2d 462, 467 N.Y.S.2d 433, 1983 N.Y. App. Div. LEXIS 20058

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1983
• Status: Published

Opinion

In an action to recover on an insurance policy, plaintiff appeals, as limited by its brief, (1) from so much of an order of the Supreme Court, Queens County (Kunzeman, J.), dated May 24, 1982, as conditionally dismissed plaintiff’s complaint as against defendant St. Paul Fire & Marine Insurance Company, unless a prior disclosure order was complied with within 20 days, (2) from a decision of the same court, dated October 27, 1982, (3) from an order of the same court, dated November 9,1982, entered on the decision dated October 27,1982, which, inter alia, granted defendant St. Paul Fire & Marine Insurance Company’s motion to dismiss plaintiff’s complaint as against it, and (4) from a judgment of the same court, dated November 30, 1982, in favor of St. Paul Fire & Marine Insurance Company, dismissing the complaint as against it. Purported appeal from decision dated October 27,1982 dismissed. No appeal lies from a decision. Appeals from orders dated May 24,1982 and November 9,1982 dismissed (see Matter ofAho, 39 NY2d 241,248). Judgment affirmed. Defendant St. Paul Fire & Marine Insurance Company is awarded one bill of costs. For more than a year, plaintiff failed to comply with a prior order of Justice Durante to produce the items sought in a notice to depose and was unable to provide a valid excuse for such default. Justice Kunzeman’s conditional order of dismissal was therefore proper (see Danahy v Meese, 84 AD2d 670), and, given plaintiff’s subsequent failure to comply with the conditional order of dismissal, absolute dismissal of the complaint was a proper sanction (see Jonard Inds. Corp. v Jerico Precision Mfg. Corp., 87 AD2d 810). Mollen, P. J., Thompson, Rubin and Boyers, JJ., concur.