JONES v. M. Marc Liechtung, D.D.S., Defendant-Respondent. (2006)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 1, 2005, which granted in part defendant Green's motion for summary judgment and granted both defendants' motions to dismiss the complaint for plaintiffs' failure to respond to court orders, unanimously affirmed, without costs.   Green's cross appeal from so much of the order as exempted a portion of the complaint from summary dismissal unanimously dismissed as academic, without costs.

The motion court providently exercised its discretion in dismissing the complaint because of plaintiffs' long continued pattern of noncompliance with court orders and discovery demands (CPLR 3126), which gave rise to an inference of willful and contumacious conduct (see Goldstein v. CIBC World Mkts. Corp., 30 A.D.3d 217, 817 N.Y.S.2d 19 [2006] ).   We note that plaintiffs failed to offer any excuse (see Rampersad v. New York City Dept. of Educ., 30 A.D.3d 218, 817 N.Y.S.2d 20 [2006] ), much less a reasonable one (Milton v. 305/72 Owners Corp., 19 A.D.3d 133, 796 N.Y.S.2d 344 [2005], lv. denied 7 N.Y.3d 778, 820 N.Y.S.2d 538, 853 N.E.2d 1106 [2006] ), and their claim of inadvertence was not raised before the motion court.

In view of the foregoing, it is unnecessary to analyze the summary judgment disposition, and we decline to do so;  we note, however, that there was no record evidence to support the imposition of vicarious liability against defendant Green on the basis of his referral (see Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 547-549, 528 N.Y.S.2d 8, 523 N.E.2d 284 [1988];  Sawh v. Schoen, 215 A.D.2d 291, 293, 627 N.Y.S.2d 7 [1995] ).   Green's success on his motion to dismiss pursuant to CPLR 3126 requires dismissal of his cross appeal (see Merchants T & F, Inc. v. Kase & Druker, 19 A.D.3d 134, 796 N.Y.S.2d 343 [2005] ).