Opinion
2013-02-19
BOARD OF MANAGERS OF the LAFAYETTE STREET CONDOMINIUM, Plaintiff–Appellant, v. 129 LAFAYETTE STREET, LLC, Defendant–Respondent, William Fegan, et al., Defendants.
Rosabianca & Associates, P.L.L.C., New York (Jeremy Panzella of counsel), for appellant. Wrobel & Schatz, LLP, New York (M. Katherine Sherman of counsel), for respondent.
Rosabianca & Associates, P.L.L.C., New York (Jeremy Panzella of counsel), for appellant. Wrobel & Schatz, LLP, New York (M. Katherine Sherman of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered August 16, 2011, which dismissed the action pursuant to CPLR 3126, unanimously affirmed, without costs.
It is quite clear that the court dismissed this action due to plaintiff's repeated failures to adhere to the court's discovery orders. Thus, we reject plaintiff's argument that the court meant to dismiss this action pursuant to CPLR 3216 instead of 3126. It is also clear that the order was not entered until August 16, 2011. Therefore, we reject plaintiff's argument that the court dismissed the action before the August 5, 2011 deadline to file the note of issue.
Plaintiff contends that the action should not have been dismissed because its behavior was neither willful nor contumacious. However, plaintiff engaged in a “long continued pattern of noncompliance with court orders and discovery demands” ( Jones v. Green, 34 A.D.3d 260, 261, 825 N.Y.S.2d 446 [1st Dept. 2006] ). Moreover, the July 2011 status conference order was a conditional dismissal order, which “relieve[d] [the court] of the unrewarding inquiry into whether [plaintiff's] resistance was wilful” ( Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 82, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] [internal quotation marks omitted] ).
Plaintiff failed to offer any excuse for ignoring the court's disclosure orders ( see Milton v. 305/72 Owners Corp., 19 A.D.3d 133, 796 N.Y.S.2d 344 [1st Dept. 2005],lv. denied7 N.Y.3d 778, 820 N.Y.S.2d 538, 853 N.E.2d 1106 [2006];see also Jones, 34 A.D.3d at 261, 825 N.Y.S.2d 446).
In view of the foregoing, it does not avail plaintiff that, one day before the deadline to file the note of issue, it moved to extend that deadline ( see Abouzeid v. Cadogan, 291 A.D.2d 423, 737 N.Y.S.2d 634 [2d Dept. 2002] ).