SOSA v. TUDOR PLACE ASSOCIATES LIMITED PARTNERSHIP (2008)

Supreme Court, Appellate Division, First Department, New York.

Marquetis Castillo SOSA, Plaintiff-Appellant, v. TUDOR PLACE ASSOCIATES, LIMITED PARTNERSHIP, et al., Defendants-Respondents.

Decided: October 02, 2008

LIPPMAN, P.J., GONZALEZ, NARDELLI, ACOSTA, DeGRASSE, JJ.

Shapiro Law Offices, Bronx (Jason S. Shapiro of counsel), for appellant. Kaufman Borgeest & Ryan, LLP, Valhalla (Jacqueline Mandell of counsel), for Tudor Place Associates, Limited Partnership, respondent. Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan T. Uejio of counsel), for 1184 Realty Associates, LLC, respondent.

Order, Supreme Court, Bronx County (Allison Y. Tuitt, J.), entered August 27, 2007, which, to the extent appealable, granted defendants' motion to dismiss the complaint and denied plaintiff's motion to renew earlier orders of preclusion, unanimously affirmed, without costs. Order, same court and Justice, entered on or about December 24, 2007, which, to the extent appealable, can be construed as denying plaintiff's motion to renew the August 27 order, unanimously affirmed, without costs.

Dismissal of the complaint is appropriate where a plaintiff repeatedly and willfully disobeys court orders for discovery (see Jones v. Green, 34 A.D.3d 260, 825 N.Y.S.2d 446 [2006] ). Since plaintiff herein repeatedly failed to schedule or appear for a medical examination, it was not an improvident exercise of discretion for the court to preclude medical testimony and dismiss the complaint. Without this evidence, plaintiff is unable to establish damages at trial.

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