Wiltos v. 1230 Park Owners, Inc.

1 A.D.2d 353, 766 N.Y.S.2d 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Durante, J.), dated December 17, 2002, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the complaint pursuant to CPLR 3126 is granted, and the complaint is dismissed.

The Supreme Court improvidently exercised its discretion in denying that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3126. The plaintiffs willful and contumacious conduct can be inferred from his repeated failure to comply with orders directing him to appear for an examination before trial and the inadequate excuses offered for his failure to comply (see Porreco v Selway, 225 AD2d 752 [1996]). Accordingly, that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3126 should have been granted. Ritter, J.P., Smith, Friedmann, H. Miller and Crane, JJ., concur.