| Anderson v RC Dolner, Inc. |
| 2007 NY Slip Op 06610 [43 AD3d 837] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Michael Anderson, Appellant, v RC Dolner, Inc., et al.,Defendants and Third-Party Plaintiffs-Respondents. Transel Elevator, Inc., et al., Third-PartyDefendants. |
—[*1] John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for defendants third-partyplaintiffs/second third-party plaintiffs-respondents. Gottlieb Siegel & Schwartz, LLP, Bronx, N.Y. (Stuart D. Schwartz of counsel), forthird-party defendant/second third-party defendant/third third-party plaintiff. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for thirdthird-party defendant.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (O'Donoghue, J.), dated September 13, 2006, asgranted that branch of the defendants' motion which was, in effect, for summary judgmentdismissing the complaint based upon his failure to comply with so much of a prior order of thesame court (Schulman, J.), dated April 4, 2006, as precluded the plaintiff from testifying at trialregarding his physical condition if he failed to appear for independent medical examinations by adate certain.[*2]
Ordered that the order is reversed insofar as appealedfrom, with one bill of costs payable by the respondents appearing separately and filing separatebriefs, and that branch of the defendants' motion which was, in effect, for summary judgmentdismissing the complaint based upon the plaintiff's failure to comply with so much of the orderdated April 4, 2006, as precluded the plaintiff from testifying at trial regarding his physicalcondition if he failed to appear for independent medical examinations by a date certain is denied.
Although the Supreme Court properly precluded the plaintiff from testifying at trial basedupon his failure to submit to independent medical examinations in accordance with theconditional order of preclusion dated April 4, 2006, which was agreed upon by the partiespursuant to a stipulation of the same date, the defendants were not entitled to summary judgmentdismissing the complaint.
While a preclusion order may serve as a basis for summary judgment dismissing thecomplaint, a preclusion order alone does not necessarily compel dismissal (see NorthwayEng'g v Felix Indus., 77 NY2d 332, 336 [1991]; Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004]). At bar,the pertinent language of the order of preclusion stated that the "plaintiff shall be precluded fromtestifying concerning his physical condition." Thus, the Supreme Court did not preclude theplaintiff from proffering any other evidence of his physical condition, such as his medical recordsor testimony of his treating physician. It only precluded his own testimony in that regard. Inaddition, the preclusion order did not preclude the plaintiff from testifying about anything otherthan his physical condition.
The defendants failed to establish that without the plaintiff's testimony, he would be unableto make out a prima facie case. Thus, under the circumstances of this case, including the limitednature of the preclusion order, the defendants were granted more relief than warranted (seee.g. Ramos v Shendell Realty Group, Inc., supra; Jeune v O.T. Trans Mix Corp., 307AD2d 1027, 1028 [2003]). Accordingly, the defendants were not entitled to summary judgmentdismissing the complaint. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.