Opinion
2008-2046 Q C.
Decided April 8, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered October 22, 2008. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint based upon plaintiff's failure to comply with a conditional order of preclusion.
ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff failed to serve complete responses to defendant's discovery demands within 45 days, as required by a so-ordered stipulation which, among other things, provided that if plaintiff failed to do so, plaintiff would be precluded from offering any evidence in any subsequent motion or at trial. As a result, the so-ordered stipulation was a conditional order of preclusion, which became absolute upon plaintiff's failure to comply ( see Panagiotou v Samaritan Vil., Inc. , 66 AD3d 979 ; Calder v Cofta , 49 AD3d 484 ; Callaghan v Curtis , 48 AD3d 501 ; Michaud v City of New York, 242 AD2d 369; Saavedra v Aiken , 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U] [App Term, 2d, 11th 13th Jud Dists 2009]). In order to avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate an excusable default and a meritorious cause of action ( see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud at 370). Since plaintiff failed to do so, plaintiff is precluded from establishing a prima facie case. Accordingly, the Civil Court should have granted defendant's motion for summary judgment dismissing the complaint ( see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud, 242 AD2d 369; Saavedra, 25 Misc 3d 133 [A], 2009 NY Slip Op 52207[U]).
Weston, J.P., Golia and Rios, JJ., concur.