| Hesse Constr., LLC v Fisher |
| 2009 NY Slip Op 02702 [61 AD3d 1143] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Hesse Construction, LLC, Respondent, v Margaret Fisher,Appellant. |
—[*1] The Crossmore Law Office, Ithaca (Edward Y. Crossmore of counsel), forrespondent.
Peters, J. Appeal from an order and judgment of the Supreme Court (Garry, J.), enteredMarch 24, 2008 in Tompkins County, which, among other things, granted plaintiff's motion forsummary judgment.
In August 2005, plaintiff commenced this action seeking payment forconstruction/renovation work it had performed at defendant's home. Defendant answered, raisingas a defense plaintiff's alleged failure to complete outstanding work, improper installation ofcertain materials and substandard workmanship, and counterclaimed for damages to repair andcomplete plaintiff's work. After months of noncompliance with plaintiff's February 2006demands for a bill of particulars and expert witness disclosure, a motion to compel was broughtin October 2006. The parties thereafter stipulated to a conditional order of preclusion, datedDecember 1, 2006, which provided that defendant would be precluded from offering evidenceupon the trial of this action if she did not respond to plaintiff's discovery demands within 30 daysfrom the date of the order. Defendant did not comply with the discovery demands until lateJanuary 2007, at which time plaintiff rejected the responses as untimely.
Plaintiff thereafter moved for summary judgment and dismissal of defendant's counterclaim.Supreme Court ordered that defendant was precluded from offering evidence in this action andgranted plaintiff's motion. Defendant appeals, and we affirm.[*2]
Supreme Court did not abuse its discretion in enforcingthe order of preclusion. "[T]he conditional order was self-executing and [defendant]'s failure toproduce [requested] items on or before the date certain rendered it absolute" (Wilson v Galicia Contr. & RestorationCorp., 10 NY3d 827, 830 [2008] [internal quotation marks and citations omitted]).Defendant's overall pattern of noncompliance, both in response to plaintiff's repeated demandsfor the requested disclosure and following the issuance of the stipulated conditional order ofpreclusion, gives rise to an inference that her conduct was willful and contumacious (see Du Valle v Swan Lake Resort Hotel,LLC, 26 AD3d 616, 617-618 [2006]; Robinson Saw Mill Works v Speilman,265 AD2d 604, 606 [1999]; Tleige v Troy Pediatrics, 237 AD2d 772, 773-774 [1997]).Notably, defendant stipulated to the consequences of her conduct and proffered no adequateexcuse for her noncompliance (seeGreaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660-661 [2004]).Under these circumstances, we cannot conclude that Supreme Court improvidently exercised itsdiscretion in ordering the preclusion of defendant's evidence.
Nor do we find error in Supreme Court's award of summary judgment in favor of plaintiffand dismissal of defendant's counterclaim. Plaintiff made a prima facie showing of entitlement tojudgment for the unpaid balance of the work performed by producing, among other things, workestimates signed by the parties, billing statements, and evidence demonstrating that theagreed-upon work was performed and that a portion of the work went unpaid. Defendant, unableto offer any admissible evidence as a consequence of the order of preclusion, failed to raise anissue of fact sufficient to withstand summary judgment (see CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Similarly, in the absence ofany competent proof to support her counterclaim, it was also properly dismissed by SupremeCourt.
Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order andjudgment is affirmed, with costs.