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Tauris Mcbride v. Jane James

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


February 14, 2012

TAURIS MCBRIDE,
APPELLANT,
v.
JANE JAMES, BARNET JAMES AND BRUCE SPENCER REZNICK,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 3, 2010.

McBride v James

Decided on February 14, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order granted defendants' motion to dismiss the complaint based on plaintiff's failure to comply with a conditional order of preclusion.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action in May 2006 to recover, among other things, his $18,750 deposit on a real estate contract. By an amended order issued in October 2008, the Civil Court directed plaintiff to provide defendants with a bill of particulars within 30 days, but plaintiff failed to comply. Plaintiff subsequently retained counsel, and a notice of appearance was filed on December 4, 2008. A notice of trial was filed in April 2009. In May 2009, defendants moved to vacate the notice of trial and to preclude plaintiff from testifying as to matters that were the subject of the October 2008 order. In an order dated October 7, 2009, the Civil Court provided that plaintiff would be precluded if he failed to schedule depositions and respond to defendants' bill of particulars within 30 days of the date of the order. After plaintiff failed to comply with the October 2009 conditional order of preclusion, defendants, in December 2009, moved to dismiss the complaint. By order entered March 3, 2010, the Civil Court granted defendants' motion.

The October 2009 conditional order of preclusion became absolute upon plaintiff's failure to comply therewith (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Callaghan v Curtis, 48 AD3d 501 [2008]; Michaud v City of New York, 242 AD2d 369 [1997]; Saavedra v Aiken, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In order to avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for his failure to timely comply with the order and the existence of a meritorious cause of action (see Panagiotou, 66 AD3d 979; Callaghan, 48 AD3d 501; Michaud, 242 AD2d 369), which plaintiff failed to do. Accordingly, the Civil Court's order granting defendants' motion to dismiss the complaint is affirmed.

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

Decision Date: February 14, 2012

20120214

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