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Garcia v. Defex

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 5, 2009

JESSICA GARCIA, PLAINTIFF-APPELLANT,
v.
JUAN CARLOS DEFEX, D.D.S., DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 2, 2007, which, in an action for dental malpractice, granted defendant's motion pursuant to CPLR 3126 for sanctions for failure to provide disclosure to the extent of conditionally precluding plaintiff from offering evidence at trial unless she provides certain authorizations and produces medical records for in camera inspection, and directing plaintiff's counsel to pay defendant's counsel $2,000 for failure to comply fully with three discovery orders, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Moskowitz, Renwick, Freedman, JJ.

14768/06

The conditional order of preclusion was not an improvident exercise of discretion in view of plaintiff's insufficiently explained delay in providing authorizations, her unexplained delay in providing proof and itemization of special damages, her failure to object to or seek a protective order with respect to other items sought but not produced, and the warning in the last compliance conference order that the imposed sanction would be imminent if plaintiff failed to comply (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]; Langer v Miller, 281 AD2d 338 [2001]). Contrary to plaintiff's contention, the court sufficiently set forth the conduct resulting in the sanctions, which were imposed pursuant to CPLR 3126, and not part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR part 130) (see Arts4All, Ltd., 54 AD3d at 290). Furthermore, the monetary sanction was appropriate to compensate the defense for the time plaintiff wasted (see Agron v Response Veh., 251 AD2d 234, 235 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090205

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