| Foster v Dealmaker, SLS, LLC |
| 2009 NY Slip Op 04604 [63 AD3d 1640] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Anthony Foster et al., Respondents, v Dealmaker, SLS, LLC, et al.,Appellants. |
—[*1] David Segal, New York City, Arnold E. DiJoseph, P.C. (Arnold E. DiJoseph, III, ofcounsel), for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), enteredJuly 16, 2008 in a personal injury action. The order denied the motion of defendants forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted, and the complaint is dismissed.
Memorandum: We agree with defendants that Supreme Court erred in denying their motionfor summary judgment dismissing the complaint. The motion was based on the failure ofplaintiffs to comply with a conditional order precluding them from introducing any evidencewith respect to items demanded in defendants' request for a verified bill of particulars, in theevent that they did not comply with those demands. "[T]he conditional order was self-executingand [plaintiffs'] failure to produce [requested] items on or before the date certain rendered itabsolute" (Wilson v Galicia Contr. &Restoration Corp., 10 NY3d 827, 830 [2008] [internal quotation marks omitted]). "Toavoid the adverse impact of the conditional order of preclusion, the plaintiff[s were] required todemonstrate an excusable default and a meritorious cause of action" (Gilmore v Garvey, 31 AD3d 381,382 [2006]; see Martin v Salvage, 238 AD2d 959 [1997]). Even assuming, arguendo,that plaintiffs demonstrated that their default was excusable, we conclude that they failed todemonstrate that they have a meritorious cause of action inasmuch as they failed to establish thatthey each sustained a serious injury (see Rasmussen v Niagara Mohawk Power Corp.,294 AD2d 862 [2002]; see generally Licari v Elliott, 57 NY2d 230, 235 [1982]).Because the preclusion order is in effect, plaintiffs now are precluded from presenting evidencesufficient to establish a prima facie case, i.e., that they sustained a serious injury, and thusdefendants are entitled to summary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484,485 [2008]; Rahman v MacDonald,17 AD3d 438 [2005]; see also Koski v Ryder Truck, 244 AD2d 872, 873 [1997]). Inlight of our determination, we need not address defendants' remaining contention.Present—Scudder, P.J., Martoche, Fahey, Carni and Pine, JJ.