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Jian Quiang Zhang, Wei Juan Yu, Yan Wen Chen, Zhi Fang Pan and Zhi Lei Zhang v. Beatriz Franco and Jacqueline Rodriguez

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 26, 2011

JIAN QUIANG ZHANG, WEI JUAN YU, YAN WEN CHEN, ZHI FANG PAN AND ZHI LEI ZHANG,
APPELLANTS,
v.
BEATRIZ FRANCO AND JACQUELINE RODRIGUEZ,
DEFENDANTS,
AND HONG YU ZHAO,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered July 28, 2009, deemed from a judgment of the same court entered October 23, 2009 (see CPLR 5501 [c]).

Jian Quiang Zhang v Franco

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The judgment, entered pursuant to the July 28, 2009 order granting defendant Hong Yu Zhao's motion for summary judgment, dismissed the complaint insofar as asserted against said defendant.

ORDERED that the judgment is affirmed, without costs.

Plaintiffs commenced this action in the Supreme Court, Queens County, to recover for personal injuries allegedly sustained in a motor vehicle accident on November 8, 2004. Defendant Hong Yu Zhao appeared in the action. The Supreme Court granted plaintiffs' unopposed motion for a default judgment against defendants Beatriz Franco and Jacqueline Rodriguez for their failure to appear or answer. A preliminary conference order, entered on November 7, 2007, set forth a schedule for outstanding disclosure and, among other things, directed plaintiffs to appear for examinations before trial on or before December 12, 2007. A compliance conference order, entered on April 17, 2008, stated that "all parties not yet deposed" were to appear for deposition on June 6, 2008. Subsequently, the case was transferred to the Civil Court pursuant to CPLR 325 (d).

Hong Yu Zhao (defendant) moved, pursuant to CPLR 3103, 3126 and 3216, for an order precluding the five plaintiffs from offering testimony at trial, due to their failure to provide court-ordered discovery, including appearances at depositions. The motion was unopposed. By so-ordered stipulation, signed by counsel for plaintiffs and defendant, and entered on September 12, 2008, plaintiffs were to appear at depositions within 45 days of the order. After plaintiffs failed to appear, defendant moved a second time for the same relief. A second so-ordered stipulation was entered on January 9, 2009 and provided that plaintiffs would appear at depositions within 90 days or be precluded from testifying at trial. Subsequently, defendant moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint, based upon plaintiffs' failure to provide court-ordered discovery, including appearances at depositions. Plaintiffs opposed the motion with an attorney's affirmation and affidavits from three of the plaintiffs, two of whom alleged that they had temporarily resided in China during the relevant period. The third plaintiff stated that he had moved and had not provided his forwarding information to his attorney. Plaintiffs' counsel stated in his affirmation that the fourth plaintiff had been hospitalized for cancer treatments and that the fifth plaintiff was living in China. The Civil Court granted defendant's motion for summary judgment dismissing the complaint insofar as asserted against her. Plaintiffs' appeal ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

As plaintiffs failed to appear for depositions within the 90-day time limit set forth in the conditional order of preclusion entered on January 9, 2009, the order became absolute (see Gilmore v Garvey, 31 AD3d 381 [2006]; Echevarria v Pathmark Stores, Inc., 7 AD3d 750 [2004]). To avoid the adverse impact of the conditional order of preclusion, plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the stipulation and the existence of a meritorious cause of action (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Echevarria, 7 AD3d at 751). Plaintiffs failed to make such a showing. Since the order of preclusion prevents plaintiffs from establishing a prima facie case, the Civil Court properly granted the motion by defendant Hong Yu Zhao for summary judgment dismissing the complaint insofar as asserted against her (see Panagiotou, 66 AD3d at 980; Calder v Cofta, 49 AD3d 484 [2008]; cf. Anderson v RC Dolner, Inc., 43 AD3d 837 [2007]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: April 26, 2011

20110426

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