BACCHUS v. Ronald Joco, M.D., Defendant. (2021)

Order, Supreme Court, Bronx County (Joseph Capella, J.), entered September 6, 2019, which, to the extent appealed from as limited by the briefs, granted so much of defendants Bronx Lebanon Hospital Center and Muhammed Adrish, M.D.'s motion as sought summary judgment dismissing the causes of action for pecuniary loss and wrongful death, unanimously affirmed, without costs.

Plaintiffs failed to comply with a compliance conference order that precluded them from offering as evidence any outstanding discovery they did not provide within 20 days.  The resulting preclusion of evidence rendered plaintiffs unable to establish a prima facie case of pecuniary loss and of wrongful death, of which pecuniary loss is a necessary element (Chong v. New York City Tr. Auth., 83 A.D.2d 546, 547, 441 N.Y.S.2d 24 [2d Dept. 1981]), requiring the dismissal of those claims (Samuels v. Montefiore Med. Ctr., 49 A.D.3d 268, 268, 852 N.Y.S.2d 121 [1st Dept. 2008]).

The motion court providently exercised its discretion in declining to consider plaintiffs' opposition papers.  In addition to failing to comply with prior court orders, plaintiffs had requested, and the parties stipulated to, an adjournment of the motion, and then plaintiffs served the papers late, without explanation for the delay or notice to opposing counsel (see Traders Co. v. AST Sportswear, Inc., 31 A.D.3d 276, 277, 819 N.Y.S.2d 239 [1st Dept. 2006]).

Plaintiffs failed to support their contention that defendants' motion was premature by showing that discovery might lead to relevant evidence or that the facts essential to justify their opposition to the motion were exclusively within defendants' knowledge and control (see CPLR 3212[f];  Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 [2d Dept. 2013]).  To the contrary, the evidence related to pecuniary loss was entirely within plaintiffs' control and not dependent on further discovery.