ASKENAZI v. Crantex Fabrics, etc., et al., third-party defendants-respondents. (1999)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated July 10, 1998, as granted the cross motion of the third-party defendants to preclude her from presenting expert testimony regarding the flammability of any fabric.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 As a result of the plaintiff's failure to comply with a conditional order of preclusion dated February 20, 1998, that conditional order became absolute (see, Michaud v. City of New York, 242 A.D.2d 369, 370, 661 N.Y.S.2d 1000;  Clissuras v. Concord Vil. Owners, 233 A.D.2d 475, 650 N.Y.S.2d 982).   In order to avoid the adverse impact of the conditional order of preclusion, the plaintiff was required to either comply with the order or to demonstrate an excusable default and the existence of a meritorious claim (see, Mann v. Dachel, 210 A.D.2d 461, 462, 620 N.Y.S.2d 1003;  Felicciardi v. Town of Brookhaven, 205 A.D.2d 495, 496, 613 N.Y.S.2d 188).  In the instant case, the plaintiff did neither.

MEMORANDUM BY THE COURT.