Castellano v. T.J. Byrne's Bar & Restaurant

715 N.Y.S.2d 58 | N.Y. App. Div. | 2000

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about October 6, 1999, which, in an action for personal injuries sustained in a slip and fall on defendants’ premises, insofar as appealed from, granted defendant-respondent’s motion to dismiss the complaint for failure to comply with a so-ordered stipulation dismissing the action unless plaintiff appeared for a physical examination, unanimously affirmed, without costs.

The so-ordered stipulation, dated May 21, 1999, provided that plaintiff was to appear for physical examination no later than July 15, 1999, the particular date to be set by 10-day written notice. By letter addressed to plaintiffs attorney dated May 25, 1999, defendant’s medical administrator confirmed a telephone conversation scheduling plaintiffs physical exam for June 14, 1999. Plaintiff did not appear at the doctor’s office on June 14, claiming, in opposition to defendant’s subsequent motion to dismiss, that she never received notice of the June 14 appointment. The motion court, in granting the motion, noted a “history” of noncompliance by plaintiff which included failure to file a note of issue, resulting in dismissal, followed by restoration upon condition that plaintiff appear for orthopedic examination which, in turn, was followed by her failure to appear for two scheduled examinations and, when given an opportunity to appear for a third, neglected to do so as well. Concur — Nardelli, J. P., Tom, Lerner, Buckley and Friedman, JJ.