| Calder v Cofta |
| 2008 NY Slip Op 01906 [49 AD3d 484] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Ryan Calder et al., Appellants, v Gerald H. Cofta,Respondent. |
—[*1] Mendolia & Stenz, Westbury, N.Y. (Effy Belessis Jable of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Satterfield, J.), dated March 8, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On August 21, 2006, the parties entered into a stipulation requiring the infant plaintiff toappear for an independent medical examination within 45 days. The stipulation was incorporatedby reference into a conditional order of preclusion dated August 21, 2006, which provided that"the failure of a party to comply with said stipulation will result in that party being precludedfrom offering evidence at trial with respect to those items of discovery outlined in the stipulationthat have not been provided." Contrary to the plaintiffs' contention, the infant plaintiff's willfulrefusal to permit the defendant's examining physician, inter alia, to conduct a meaningfulphysical examination of his nose and mouth constituted a failure to comply with the stipulation(see Allen v State of New York, 228 AD2d 1001 [1996]). Upon the plaintiffs' failure tocomply with the terms of the stipulation, the conditional order of preclusion became absolute (see Koslosky v Khorramian, 31 AD3d716 [2006]; Echevarria v PathmarkStores, Inc., 7 AD3d 750, 751 [2004]; Hall v Penas, 5 AD3d 549 [2004]). To be relieved of the adverseimpact of the conditional order, the plaintiffs were required to demonstrate a reasonable excusefor their failure to comply with the stipulation and the existence of a meritorious cause of action(see State Farm Mut. Auto. Ins. Co. vHertz Corp., 43 AD3d 907, 908 [2007]; [*2]Matter of Denton v City of MountVernon, 30 AD3d 600 [2006]; Echevarria v Pathmark Stores, Inc.,7 AD3d at751). The plaintiffs failed to demonstrate a reasonable excuse for their failure to comply with thestipulation (see Burger v Bladt, 112 AD2d 127 [1985]; Goldman v Linkoff, 45AD2d 709 [1974]). Furthermore, they failed to submit any proof regarding the issue of liability.Since the order of preclusion prevented the plaintiffs from making out a prima facie case withrespect to whether the injured plaintiff sustained a serious injury within the meaning of InsuranceLaw § 5102 (d), the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint (see State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43AD3d at 908; Rahman v MacDonald,17 AD3d 438, 439 [2005]; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571,572 [2004]; cf. Anderson v RC Dolner,Inc., 43 AD3d 837 [2007]).
The plaintiff's remaining contention is without merit. Mastro, J.P., Fisher, Florio, Angiolilloand Dickerson, JJ., concur. [See 2007 NY Slip Op 30215(U) (2007).]