CALDER v. COFTA (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated March 8, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On August 21, 2006, the parties entered into a stipulation requiring the infant plaintiff to appear for an independent medical examination within 45 days.   The stipulation was incorporated by reference into a conditional order of preclusion dated August 21, 2006, which provided that “the failure of a party to comply with said stipulation will result in that party being precluded from offering evidence at trial with respect to those items of discovery outlined in the stipulation that have not been provided.”   Contrary to the plaintiffs' contention, the infant plaintiff's willful refusal to permit the defendant's examining physician, inter alia, to conduct a meaningful physical examination of his nose and mouth constituted a failure to comply with the stipulation (see Allen v. State of New York, 228 A.D.2d 1001, 644 N.Y.S.2d 843).   Upon the plaintiffs' failure to comply with the terms of the stipulation, the conditional order of preclusion became absolute (see Koslosky v. Khorramian, 31 A.D.3d 716, 818 N.Y.S.2d 463;  Echevarria v. Pathmark Stores, Inc., 7 A.D.3d 750, 751, 776 N.Y.S.2d 902;  Hall v. Penas, 5 A.D.3d 549, 772 N.Y.S.2d 835).   To be relieved of the adverse impact of the conditional order, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the stipulation and the existence of a meritorious cause of action (see State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 43 A.D.3d 907, 908, 841 N.Y.S.2d 617;  Matter of Denton v. City of Mount Vernon, 30 A.D.3d 600, 817 N.Y.S.2d 140;  Echevarria v. Pathmark Stores, Inc., 7 A.D.3d at 751, 776 N.Y.S.2d 902).   The plaintiffs failed to demonstrate a reasonable excuse for their failure to comply with the stipulation (see Burger v. Bladt, 112 A.D.2d 127, 490 N.Y.S.2d 823;   Goldman v. Linkoff, 45 A.D.2d 709, 356 N.Y.S.2d 101).   Furthermore, they failed to submit any proof regarding the issue of liability.   Since the order of preclusion prevented the plaintiffs from making out a prima facie case with respect to whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 43 A.D.3d at 908, 841 N.Y.S.2d 617;   Rahman v. MacDonald, 17 A.D.3d 438, 439, 793 N.Y.S.2d 144;  Contarino v. North Shore Univ. Hosp. at Glen Cove, 13 A.D.3d 571, 572, 786 N.Y.S.2d 326;  cf. Anderson v. RC Dolner, Inc., 43 A.D.3d 837, 842 N.Y.S.2d 50).

The plaintiff's remaining contention is without merit.