| SRN Realty, LLC v Scarano Architect, PLLC |
| 2014 NY Slip Op 02285 [116 AD3d 693] |
| April 2, 2014 |
| Appellate Division, Second Department |
| SRN Realty, LLC, Appellant, v Scarano Architect,PLLC, et al., Respondents. |
—[*1] Zetlin & Di Chiara LLP, New York, N.Y. (James H. Rowland of counsel), forrespondents.
In an action to recover damages for architectural malpractice and breach of contract,the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo,J.), dated December 23, 2011, which granted that branch of the defendants' motion whichwas pursuant to CPLR 3126, in effect, to preclude the plaintiff from offering evidence attrial with respect to information sought in discovery for failure to comply withoutstanding discovery demands as directed by a conditional order of preclusion datedAugust 3, 2011, and thereupon directed the dismissal of the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants to recover damages forarchitectural malpractice and breach of contract. In a conditional order of preclusiondated August 3, 2011, the Supreme Court, inter alia, directed that all depositions were tobe completed, and all discovery responses were to be served, by September 15, 2011.The order precluded the parties from offering evidence at trial with respect toinformation sought in discovery, unless the parties completed such disclosure bySeptember 15, 2011. In the order appealed from, the Supreme Court granted that branchof the defendants' motion which was pursuant to CPLR 3126, in effect, to preclude theplaintiff from offering evidence at trial with respect to information sought by thedefendants in discovery for failure to provide disclosure as directed by the conditionalorder of preclusion, and thereupon directed the dismissal of the complaint.
A conditional order of preclusion requires a party to provide certain discovery by adate certain, or face the sanctions specified in the order (see Gibbs v St. BarnabasHosp., 16 NY3d 74 [2010]; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821 [2011]). As aresult of the plaintiff's failure to timely comply with the conditional order of preclusion,that conditional order became absolute (see Archer Capital Fund, L.P. v GEL, LLC, 95 AD3d 800,801 [2012]; Keenan vFiorentino, 84 AD3d 740 [2011]; Wei Hong Hu v Sadiqi, 83 AD3d at821; Panagiotou v SamaritanVil., Inc., 66 AD3d 979, 980 [2009]; Rodriguez v Zeichner, 50 AD3d 999, 1000 [2008]). To berelieved of the adverse impact of the conditional order of [*2]preclusion, the plaintiff was required to demonstrate areasonable excuse for its failure to comply with the order and the existence of apotentially meritorious cause of action (see Keenan v Fiorentino, 84 AD3d 740 [2011]; WeiHong Hu v Sadiqi, 83 AD3d at 821).
Here, the plaintiff failed to provide a reasonable excuse for its default and failed todemonstrate the existence of potentially meritorious cause of action. Since the plaintiff isprecluded from offering evidence at trial with respect to information sought in discoveryand will be unable, without that evidence, to establish a prima facie case, the SupremeCourt properly directed the dismissal of the complaint (see Keenan v Fiorentino,84 AD3d at 741; see alsoGilmore v Garvey, 31 AD3d 381 [2006]). Mastro, J.P., Leventhal, Sgroi andMiller, JJ., concur. [Prior Case History: 34 Misc 3d 1208(A), 2011 NY Slip Op52458(U).]