Jeffrey Ganz et al., Plaintiffs–Appellants, v. Sander S. Florman, M.D., et al., Defendants–Respondents. (2023)

Essner & Kobin, LLP, New York (Howard Essner of counsel), for appellants.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 20, 2021, which, to the extent appealed from, granted defendants' motion to dismiss the complaint pursuant to CPLR 3042(d), unanimously affirmed, without costs.

Plaintiffs' failure to submit opposition papers to defendants' motion to dismiss does not render the order an unappealable order entered upon default (CPLR 5511), as plaintiff appeared and orally opposed the motion during the final discovery conference (see Spatz v. Bajramoski, 214 A.D.2d 436, 436 [1st Dept 1995] ).

On the merits, the court providently exercised its discretion in dismissing the complaint in view of plaintiffs' longstanding pattern of noncompliance with discovery demands and court orders, which raised an inference of willful and contumacious conduct (see Jones v. Green, 34 AD3d 260, 261 [1st Dept 2006];  Goldstein v. CIBC World Mkts. Corp., 30 AD3d 217, 217 [1st Dept 2006] ).  Plaintiffs failed to produce all requested discovery during a 11/212 year period, despite being afforded numerous opportunities to do so, including denial of a prior motion to dismiss, and did not offer any explanation for the delay.