| Keenan v Fiorentino |
| 2011 NY Slip Op 03806 [84 AD3d 740] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Richard Keenan, Respondent, v Carl Fiorentino,Appellant. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Joseph Randazzo of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated September 28, 2010, which denied hismotion to dismiss the complaint based upon the plaintiff's failure to comply with his outstandingdiscovery demands as directed by a conditional order of preclusion dated February 23, 2010.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion todismiss the complaint based upon the plaintiff's failure to comply with the defendant'soutstanding discovery demands as directed by a conditional order of preclusion dated February23, 2010, is granted.
By order dated February 23, 2010, the Supreme Court granted a conditional order precludingthe plaintiff from offering evidence of damages at trial unless he complied with the defendant'soutstanding discovery demands on or before April 9, 2010. It is undisputed that the plaintifffailed, inter alia, to serve his responses to the notices for discovery and inspection within therelevant time period. Therefore, the conditional order became absolute, precluding the plaintifffrom offering evidence of damages at trial (see Rodriguez v Zeichner, 50 AD3d 999, 1000 [2008]; Gilmore v Garvey, 31 AD3d 381[2006]; Contarino v North Shore Univ.Hosp. at Glen Cove, 13 AD3d 571, 572 [2004]). To avoid the adverse impact of theconditional order of preclusion, the plaintiff was required to demonstrate a reasonable excuse forhis failure to comply and a potentially meritorious cause of action (see Panagiotou v Samaritan Vil., Inc.,66 AD3d 979, 980 [2009]; Callaghan v Curtis, 48 AD3d 501, 502 [2008]; State Farm Mut. Auto. Ins. Co. v HertzCorp., 43 AD3d 907, 908 [2007]). The plaintiff failed to meet this burden. Since theorder of preclusion prevented the plaintiff from making out a prima facie case (see Siler v Lutheran Social Servs. of Metro.N.Y., 10 AD3d 646, 648 [2004]), the defendant's motion to dismiss the complaintshould have been granted (see Bazoyahv Herschitz, 79 AD3d 1081, 1082 [2010]; Gilmore v Garvey, 31 AD3d at 382;Alphonse v UBJ Inc., 266 AD2d 171 [1999]). Dillon, J.P., Covello, Balkin, Lott andRoman, JJ., concur.