Calder v. CoftaCalder v. Cofta
On August 21, 2006, the parties entered into a stipulation requiring the infant plaintiff to appear for an independent medical examination within 45 days. The stipulation was incorporated by reference into a conditional order of preclusion dated August 21, 2006, which provided that “the failure of a party to comply with said stipulation will result in that party being precluded from offering evidence at trial with respect to those items of discovery outlined in the stipulation that have not been provided.” Contrary to the plaintiffs’ contention, the infant plaintiff‘s willful refusal to permit the defendant‘s examining physician, inter alia, to conduct a meaningful physical examination of his nose and mouth constituted a failure to comply with the stipulation (see Allen v State of New York, 228 AD2d 1001 [1996]). Upon the plaintiffs’ failure to comply with the terms of the stipulation, the conditional order of preclusion became absolute (see Koslosky v Khorramian, 31 AD3d 716 [2006]; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751 [2004]; Hall v Penas, 5 AD3d 549 [2004]). To be relieved of the adverse impact of the conditional order, the plaintiffs were required to
The plaintiffs’ remaining contention is without merit. Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ., concur. [See 2007 NY Slip Op 30215(U) (2007).]