| Weller v Paul |
| 2012 NY Slip Op 00778 [91 AD3d 945] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Robert Weller, Appellant, v Matthew S. Paul et al.,Respondents. |
—[*1] MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, N.Y. (James P. Harris ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated April7, 2011, as, upon the plaintiff's failure to comply with a ruling conditionally precluding him fromadducing any medical testimony if he failed to attend an independent medical examination,granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced the present action to recover damages for personal injuries heallegedly sustained when he tripped over a stone along a walkway leading to the front door of thedefendants' house, which was then covered by six inches of snow. The defendants moved forsummary judgment dismissing the complaint, based upon the plaintiff's failure to comply with aruling conditionally precluding him from adducing any medical testimony if he failed to attendan independent medical examination, and, alternatively, on the ground that they could not be heldliable for the plaintiff's injuries, which were allegedly sustained during a storm in progress. TheSupreme Court granted the defendants' motion on the basis of the plaintiff's failure to complywith discovery, including his failure to comply with the ruling directing him to attend theindependent medical examination. The plaintiff appeals. We reverse the order insofar as appealedfrom.
To avoid the adverse impact of a ruling of conditional preclusion, the plaintiff must"demonstrate a reasonable excuse for his failure to comply and a potentially meritorious cause ofaction" (Keenan v Fiorentino, 84AD3d 740, 740 [2011]; see WeiHong Hu v Sadiqi, 83 AD3d 820 [2011]; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979, 980 [2009]; Callaghan v Curtis, 48 AD3d 501,502 [2008]). Here, the plaintiff demonstrated a reasonable excuse for his failure to attend theindependent medical examination scheduled for December 15, 2010, through his affidavit, inwhich he averred that he had been involved in a car accident on the night before the examination.Further, the plaintiff attended an independent medical examination approximately one monthlater, and the defendants did not assert or demonstrate any prejudice from that short delay. Theplaintiff also demonstrated that he [*2]had a potentiallymeritorious cause of action through his deposition testimony that he tripped on a stone along thewalkway on the defendants' property leading to the front door, which was covered by six inchesof snow, along with the deposition testimony of the defendant Matthew Paul that the snow hadbeen present for one or two days prior to the accident and that he had decided not to shovel it.
Accordingly, the plaintiff's failure to attend the independent medical examination onDecember 15, 2010, should have been excused (see Weitzenberg v Nassau County Dept. of Recreation & Parks, 29AD3d 683, 684-685 [2006]; Lernerv Ayervais, 16 AD3d 382 [2005]; Ray Realty Fulton, Inc. v Lee, 7 AD3d 772, 772-773 [2004];Melo v Pagano, 297 AD2d 717, 718 [2002]; Evans v County of Nassau, 240AD2d 363, 363-364 [1997]; Richardson v Martorano, 184 AD2d 557, 558 [1992];Cherry v New York City Hous. Auth., 183 AD2d 693 [1992]), and the defendants werenot entitled to summary judgment dismissing the complaint since the plaintiff should not havebeen precluded from adducing medical testimony.
Further, the Supreme Court erred in considering other purported failures on the part of theplaintiff to comply with discovery, which were not the basis of the defendants' motion forsummary judgment. In any event, the record only reveals the plaintiff's unexcused failure toattend one independent medical examination appointment in November 2010, and his counsel'sfailure to appear for one conference, conduct which did not amount to willful and contumaciousbehavior warranting the extreme sanction of dismissal (see Delarosa v Besser Co., 86 AD3d 588 [2011]; Mironer v City of New York, 79 AD3d1106, 1108 [2010]; Hutchinson vLanger, 71 AD3d 735 [2010]; ACME ANC Corp. v Read, 55 AD3d 854, 855 [2008]).
Finally, the defendants argue, as an alternative ground for affirmance (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]), that they were entitled tosummary judgment dismissing the complaint because the plaintiff's accident occurred during astorm in progress. The defendants failed to meet their prima facie burden of demonstrating theirentitlement to judgment as a matter of law on this basis. Under the "storm in progress rule," alandowner "generally cannot be held liable for injuries sustained as a result of slippery conditionsthat occur during an ongoing storm, or for a reasonable time thereafter" (Mazzella v City of New York, 72AD3d 755, 756 [2010]; see Solazzov New York City Tr. Auth., 6 NY3d 734 [2005]). Here, the defendants did not presentany meteorological data demonstrating that there was a storm in progress at the time of theplaintiff's accident, and, significantly, the defendant Matthew Paul admitted during his depositionthat the six inches of snow covering the walkway had been present for one or two days prior tothe accident. In light of this admission, and contrary to the defendants' contention, the plaintiff'sdeposition testimony that it was snowing "very lightly" at the time that he started work on the dayof the accident, but that it had stopped snowing by the time he arrived at the defendants' house,did not constitute a concession that his accident was the result of a slippery condition thatdeveloped during a storm in progress.
Accordingly, the defendants' motion for summary judgment dismissing the complaint shouldhave been denied. Skelos, J.P., Dickerson, Austin and Miller, JJ., concur.