| McKanic v Amigos del Museo del Barrio |
| 2010 NY Slip Op 05478 [74 AD3d 639] |
| June 22, 2010 |
| Appellate Division, First Department |
| Janulyn McKanic, Appellant, v Amigos del Museo delBarrio, Respondent. |
—[*1] Meier Franzino & Scher, LLP, New York (Davida S. Scher of counsel), forrespondent.
Order, Supreme Court, New York County (Martin Schulman, J.), entered December 4, 2008,which dismissed the complaint upon plaintiff's failure to comply with a prior order of the samecourt and Justice, entered October 7, 2008, directing her to execute authorizations for the releaseof certain federal tax returns within 20 days of the date of the order, unanimously affirmed, withcosts. Order, same court and Justice, entered October 7, 2008, which granted defendant's motionto compel plaintiff to provide said authorizations, unanimously affirmed, with costs. Appealfrom order, same court and Justice, entered November 24, 2008, which declined to sign an orderto show cause, unanimously dismissed, without costs, as taken from a nonappealable paper.Order, same court and Justice, entered December 8, 2008, which denied as moot plaintiff'smotion for a protective order, unanimously affirmed, without costs.
The court properly dismissed the complaint after plaintiff failed to comply with its ordercompelling her to execute authorizations for the IRS to permit defendant to review her taxreturns. Plaintiff sought, inter alia, lost wages in this employment discrimination action, andagreed to execute the necessary authorizations because defendant was unable to obtain her salaryhistory either from her or from her purported former employers. However, she failed to executethe authorizations. The court properly granted the ensuing motion to compel since defendantestablished that the information was indispensable to the litigation and unavailable from othersources (see Nanbar Realty Corp. v Pater Realty Co., 242 AD2d 208, 209-210 [1997]).Defendant also demonstrated that it had no interest in plaintiff's tax returns other than to verifyher salary history and that it would limit its examination of the returns to relevant material(see id.).
Furthermore, the order compelling plaintiff to execute the authorizations expressly statedthat if it were not complied with in 20 days, the complaint would be dismissed, and thus becameabsolute when plaintiff failed to comply within the stated time period (see Santiago v City of New York, 71AD3d 468 [2010]). Plaintiff's willful, deliberate, contemptuous and bad faith failure tocomply with her discovery obligations would have justified dismissal of the complaint in any[*2]event (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Jones v Green, 34 AD3d 260[2006]).
In light of the foregoing, the court properly denied as moot plaintiff's motion for a protectiveorder.
The denial of an order declining to sign an order to show cause is not appealable (see M& J Trimming v Kew Mgt. Corp., 254 AD2d 21 [1998]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Gonzales, P.J., Andrias, Catterson, Renwick and Manzanet-Daniels, JJ.