Ensley v Snapper, Inc.

2009 NY Slip Op 03594 [62 AD3d 403]

May 5, 2009

Appellate Division, First Department

As corrected through Wednesday, July 1, 2009

Lamont Ensley, Appellant, v Snapper, Inc., Respondent, etal., Defendant.

—[*1]Segal & Lax, LLP, New York (Patrick Daniel Gatti of counsel), for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian J. Carey of counsel), forrespondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 3, 2008, whichconditionally granted defendant Snapper's motion to preclude plaintiff from offering certainevidence at trial, and order, same court and Justice, entered on or about May 6, 2008, whichdenied plaintiff's motion to vacate or modify the prior order and precluded the testimony ofplaintiff's expert for all purposes, unanimously affirmed, without costs.

Plaintiff failed to comply in a timely fashion with three discovery orders, and failed to offera reasonable excuse (see Kihl v Pfeffer, 94 NY2d 118 [1999]) or set forth the merits ofhis claim (see Tejeda v 750 Gerard Props. Corp., 272 AD2d 124 [2000]) when moving tovacate the final, conditional order. Since his counsel was personally present when the earlierorder was issued, plaintiff was on notice of it and bound by its provisions (see Matter of RaesPharm. v Perales, 181 AD2d 58, 61-62 [1992]). Concur—Gonzalez, P.J., Buckley,Catterson, McGuire and Renwick, JJ.