| Brewster v FTM Servo, Corp. |
| 2007 NY Slip Op 07372 [44 AD3d 351] |
| October 4, 2007 |
| Appellate Division, First Department |
| Colin A. Brewster et al., Respondents, v FTM Servo, Corp.et al., Defendants, and Angel Hernandez, Appellant. |
—[*1] Allen D. Springer, Brooklyn, for respondents.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered April 26, 2007, whichdenied the motion by defendant Hernandez (and the cross motion by the remaining defendants)for summary judgment dismissing the complaint with respect to plaintiff Colin Brewster on theground that said plaintiff had not suffered a serious injury, unanimously reversed, on the law,without costs, and the motion granted, and, upon a search of the record, the cross motion grantedas well. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
Based on Brewster's admission at deposition of his involvement in another automobileaccident prior to this one, and the unavailability of the medical records for that case, defendantHernandez served a supplemental notice for discovery and inspection, requesting that Brewsterprovide written authorization allowing defendants to obtain the relevant records. When Brewsterfailed to comply with that demand and ensuing court directives, including a so-orderedstipulation, Hernandez moved for summary dismissal of Brewster's portion of the complaint forrefusal to supply the court-ordered discovery, as well as the failure to demonstrate serious injuryas defined by Insurance Law § 5102 (d).
CPLR 3126 authorizes sanctions against a party who "refuses to obey an order for disclosureor wilfully fails to disclose information which the court finds ought to have been disclosed." "Ifthe credibility of court orders and the integrity of our judicial system are to be maintained, alitigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d 118, 123[1999]). Brewster's unexplained noncompliance with a series of court-ordered disclosuremandates over a period of nearly two years sufficiently created an inference of willful andcontumacious conduct (see Santoli v475 Ninth Ave. Assoc., LLC, 38 AD3d 411, 415 [2007]; Jones v Green, 34 AD3d 260[2006]). The persistent failure to submit medical records relating to Brewster's previousautomobile accident warranted dismissal of his portion of the complaint, since such material wasnecessary to ascertain whether any of his purported injuries might have been caused by thatearlier accident.[*2]
Aside from his failure to abide with court-mandateddisclosure, Brewster conceded at his deposition that he had sustained injuries to his neck, backand shoulder in a prior automobile accident. Once a defendant has presented evidence of apreexisting injury, even in the form of an admission made at a deposition (see Alexander v Garcia, 40 AD3d274 [2007]), it is incumbent upon the plaintiff to present proof to meet the defendant'sasserted lack of causation (see Baez vRahamatali, 6 NY3d 868 [2006]; Pommells v Perez, 4 NY3d 566, 574 [2005]). Brewster'ssubmissions totally ignored the effect of his previous mishap on the purported symptoms causedby the latest accident. The fact that Hernandez's expert discerned some minor loss of motion inBrewster's lumbar spine is irrelevant where the objective tests performed by this physician werenegative, and Brewster had testified to a preexisting injury in that part of his body (see Style v Joseph, 32 AD3d 212,214 [2006]; Montgomery v Pena, 19AD3d 288, 289-290 [2005]). Furthermore, not only did Brewster testify that he returned towork only a week after the accident, but there is no indication of any daily activity he could notperform as a result of this accident.
Upon search of the record, summary judgment is also granted to defendants FTM Servo,Corp. and Hill against Brewster (seeSeaton v Budget Rent A Car Corp., 21 AD3d 792 [2005]) because the issue of seriousinjury is identical as it relates to all defendants, notwithstanding their failure to pursue an appeal(see Friedman v City of New York, 307 AD2d 227 [2003]). Concur—Mazzarelli,J.P., Saxe, Sullivan, Catterson and Kavanagh, JJ.