Video-Cinema Films, Inc. v. Migdal

249 A.D.2d 73, 671 N.Y.S.2d 239, 1998 N.Y. App. Div. LEXIS 3839

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Herman Cahn, J.), entered June 13, 1997, dismissing the complaint, and bringing up for review an order of the same court and Justice, entered April 22, 1997, granting defendants’ motion to enforce a conditional order of preclusion, unanimously affirmed, with costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed within the appeal from the June 13, 1997 judgment.

Plaintiffs repeated failure to comply with outstanding discovery demands, and a conditional order of preclusion, justified the drastic relief of dismissal in the absence of a reasonable excuse for the failure to comply, and an affidavit of merits (see, Video-Cinema Films v Seaboard Sur. Co., 237 AD2d 135; Becerril v Skate Way Roller Rink, 184 AD2d 365). The undated and unsworn letter from a psychiatrist submitted in support of plaintiffs contention that its president was not competent “to prepare for and testify at a trial” did not constitute evidentiary proof in admissible form (Perez v New York City Hous. Auth., 229 AD2d 310, 311). Concur — Rosenberger, J. P., Nardelli, Wallach, Rubin and Mazzarelli, JJ.