TEJEDA v. 750 GERARD PROPERTIES CORP (2000)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 31, 1999, which denied defendants' motion and cross motion for summary judgment, unanimously reversed, on the law, without costs, the motions granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

 There is no dispute that plaintiffs failed to provide the discovery material within the 90-day period set forth in the conditional order of preclusion and it is settled that such failure warrants the drastic relief of dismissal in the absence of a reasonable excuse for the failure to comply and an affidavit of merit (see, Video-Cinema Films v. Migdal, Pollack, Rosenkrantz & Sherman, 249 A.D.2d 73, 671 N.Y.S.2d 239;  VSP Assocs. v. 46 Estates Corp., 243 A.D.2d 373, 664 N.Y.S.2d 556;  Video-Cinema Films v. Seaboard Sur. Co., 237 A.D.2d 135, 655 N.Y.S.2d 352).

 We find that plaintiffs have failed to demonstrate the existence of a meritorious claim as plaintiff's affidavit simply states that the infant plaintiff was injured when a defective window suddenly slammed down on her fingers.   The affidavit is devoid of any detail regarding the alleged defect in the window, nor is there any indication that defendants had actual or constructive notice of a defect (see, Juarez by Juarez v. Wavecrest Mgmt. Team Ltd., 88 N.Y.2d 628, 646, 649 N.Y.S.2d 115, 672 N.E.2d 135;  Martinez v. Otis Elevator, 213 A.D.2d 523, 624 N.Y.S.2d 43).   The mere fact that the accident occurred, standing alone, is insufficient to establish liability on the part of defendants (see, Sheikh v. New York City Tr. Auth., 258 A.D.2d 347, 685 N.Y.S.2d 223).

 Finally, plaintiffs' argument that this action should be allowed to proceed for the sake of judicial economy in that the Statute of Limitations has not expired and the action can simply be recommenced is without merit as a judgment based on a violation of a preclusion order is a determination on the merits (see, Strange v. Montefiore Hosp. and Med. Ctr., 59 N.Y.2d 737, 463 N.Y.S.2d 429, 450 N.E.2d 235;  Cruz v. Kamlis Dresses & Sportswear Co., 238 A.D.2d 103, 654 N.Y.S.2d 778).

MEMORANDUM DECISION.