Zapco 1500 Investment L.P. v. Wiener

Nov 14, 2002
Versions:299 A.D.2d 206
749 N.Y.S.2d 138
2002 N.Y. App. Div. LEXIS 10803

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April 25, 2001, dismissing the complaint and awarding defendants sanctions against plaintiff’s counsel in the amount of $5,000, and bringing up for review an order, same court and Justice, dated March 28, 2001, which granted defendants’ motion for summary judgment, denied plaintiffs cross motion to vacate prior orders of preclusion and for summary judgment on its claims, and imposed sanctions, unanimously affirmed, with costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Although preclusion is a drastic remedy, plaintiffs unexplained failure to comply with at least three discovery orders, two of which were conditional preclusion orders, warranted the preclusion of plaintiffs documentary evidence (see Shaw v Bronfman, 284 AD2d 267, lv dismissed 97 NY2d 725; Siegman v Rosen, 270 AD2d 14). This rendered plaintiff unable to establish a prima facie case and therefore required dismissal of the complaint (see Cano v BLF Realty Holding Corp., 243 AD2d 390). Plaintiffs repeated and inexcusable discovery delays, as well as its refusal to discontinue the action upon preclusion of its evidence, and its frivolous request for summary judgment, *207in an action of dubious merit to begin with, justified the imposition of sanctions against plaintiffs counsel in the amount of $5,000 (see New v Scores Entertainment, 255 AD2d 108). Concur — Williams, P.J., Nardelli, Tom and Lemer, JJ.