Opinion
January 16, 1990
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
In this personal injury action commenced in November 1985, plaintiffs failed to comply with discovery demands, both in the first instance and after entering into a "so ordered" stipulation by which defendants' motions for preclusion of all evidence were granted unless discovery was provided within 90 days.
Despite its finding that plaintiffs' motion in opposition to preclusion and summary judgment — which was submitted more than two months after the preclusion order became final — was "devoid of sufficient excuse to justify the continued failure to furnish the [discovery]", the IAS Part denied defendants' motions for summary judgment and granted plaintiffs' cross motion for additional time on condition that the movants be paid $500 each for disbursements and counsel fees. This was error.
Inasmuch as plaintiffs have failed to make a showing sufficient to excuse their default on the prior preclusion order, they cannot avoid preclusion and summary judgment. (Brusco v. St. Clare's Hosp. Health Center, 128 A.D.2d 390, lv denied 70 N.Y.2d 606, appeal dismissed 70 N.Y.2d 692.)
Concur — Murphy, P.J., Asch, Kassal and Rosenberger, JJ.