Russell v. B&B Industries, Inc.

Oct 27, 2003
Versions:309 A.D.2d 914
766 N.Y.S.2d 374

In an action to recover damages for personal injuries, etc., the plaintiffs appeal *915from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 25, 2002, which granted the defendants’ motion pursuant to CPLR 3126 to preclude the plaintiffs’ claims for damages and to dismiss the complaint based upon the plaintiffs’ failure to comply with so much of an order of the same court dated July 10, 2002, as directed that such claims would be precluded if the plaintiffs failed to appear for independent medical examinations by experts designated by the defendants by a date certain.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to preclude their claims for damages and to dismiss the complaint since the plaintiffs repeatedly violated the Supreme Court’s discovery orders, including the order directing the injured plaintiff to appear for certain independent medical examinations (hereinafter IMEs) and violated the Supreme Court’s subsequent order directing that such claims would be precluded if he failed to complete all IMEs by a date certain (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Gomez v Gateway Demolition Corp., 293 AD2d 649 [2002]; Abouzeid v Cadogan, 291 AD2d 423 [2002]).

The plaintiffs’ remaining contention is raised for the first time on appeal and is not properly before this Court (see Zambito v Catanzaro, 264 AD2d 839 [1999]). Santucci, J.P., S. Miller, Goldstein and Cozier, JJ., concur.