Opinion
2019–00486 Index No. 707892/17
05-13-2020
Anastasios VLAHOS, et al., respondents, v. Fernando ROBERT, appellant.
Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for appellant. Sacco & Fillas, LLP, Bayside, N.Y. (Elliot L. Lewis of counsel), for respondents.
Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for appellant.
Sacco & Fillas, LLP, Bayside, N.Y. (Elliot L. Lewis of counsel), for respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Richard G. Latin, J.), entered December 18, 2018. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On April 26, 2018, the parties' attorneys entered into a stipulation requiring the plaintiffs to comply with the defendant's disclosure demands and a preliminary conference order by June 11, 2018, or be precluded from testifying at trial regarding those items not provided. In July 2018, the defendant moved for summary judgment dismissing the complaint on the basis that the plaintiffs were precluded from offering any evidence at trial based upon their failure to comply with the stipulation. The Supreme Court denied the motion. The defendant appeals. The defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint on the basis of the stipulation (cf. McIntosh v. New York City Partnership Dev. Fund Co., Inc., 165 A.D.3d 1251, 1252–1253, 87 N.Y.S.3d 637 ; Piemonte v. JSF Realty, LLC, 140 A.D.3d 1145, 1146, 36 N.Y.S.3d 146 ). The stipulation did not provide that the plaintiffs would be precluded from offering any evidence at trial. Instead, the stipulation set forth that the plaintiff would be precluded from testifying at trial regarding those items not provided. Even with the stipulation, the plaintiffs would not be precluded from offering other evidence with respect to liability or alleged injuries. Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's determination denying his motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., DILLON, MILLER, and BARROS, JJ., concur.