Opinion
2015-05-26
Ife–Marilyn O'BERRY, Plaintiff–Respondent, v. GELCO CORP., et al., Defendants–Appellants.
Winget, Spadafora & Schwartzberg, LLP, New York (Harris B. Katz of counsel), for appellants. Fein & Jakab, New York (Peter Jakab of counsel), for respondent.
Winget, Spadafora & Schwartzberg, LLP, New York (Harris B. Katz of counsel), for appellants. Fein & Jakab, New York (Peter Jakab of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 22, 2014, which, to the extent appealed from, denied defendants' motion to vacate the note of issue and compel certain discovery, unanimously affirmed, without costs.
The denial of defendants' motion to compel the deposition testimony of defendant Abdou, thereby effectively precluding him from testifying at trial, was a provident exercise of the motion court's discretion. Defendants failed to give a reasonable excuse for their disobedience of two compliance conference orders warning the parties that failure to comply would result in preclusion ( see S.R. Garden City, LLC v. Magnacare, LLC, 114 A.D.3d 925, 926, 981 N.Y.S.2d 133 [2d Dept.2014]; see also Jones v. Green, 34 A.D.3d 260, 261, 825 N.Y.S.2d 446 [1st Dept.2006] ).
The motion court providently exercised its discretion in declining to vacate the note of issue, even though discovery remained outstanding ( see e.g. May v. American Red Cross, 282 A.D.2d 285, 722 N.Y.S.2d 868 [1st Dept.2001] ).
Because the appellate record does not include a bill of particulars purportedly alleging neurological injuries, this Court cannot meaningfully review defendants' contention that the motion court erred in refusing to compel plaintiff to submit to a neurological IME ( see UBS Sec. LLC v. Red Zone LLC, 77 A.D.3d 575, 579, 910 N.Y.S.2d 55 [1st Dept.2010], lv. denied 17 N.Y.3d 706, 2011 WL 2568003 [2011] ).
We have considered defendants' remaining contentions and find them unavailing.