Opinion
No. 17285 Index No. 28978/17E Case No. 2022-02058
02-09-2023
T.W., etc., et al., Plaintiffs-Appellants, v. Phillip Bus Service et al., Defendants-Respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellants. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellants.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents.
Before: Kern, J.P., Singh, Shulman, Pitt-Burke, Higgitt, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered March 23, 2022, which, upon granting plaintiffs' motion to renew, adhered to its prior determination granting defendants' motion to preclude plaintiffs from offering evidence at trial for failure to comply with discovery, unanimously affirmed, without costs.
Plaintiffs' prior appeal of this matter was dismissed for failure to prosecute; as a result, this appeal warrants dismissal, as well (see Bray v Cox, 38 N.Y.2d 350, 353 [1976]). Nonetheless, we review the matter in the exercise of our discretion (see Faricelli v TSS Seedman's, 94 N.Y.2d 772, 774 [1999]).
Plaintiffs were not entitled to be relieved from the adverse impact of the conditional order of preclusion (see Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 80 [2010]). On the contrary, plaintiffs' excuse of law office failure was conclusory and unsubstantiated, and it did not excuse their default in failing to comply with discovery demands and numerous court orders for over two years (see Vazquez v Lambert Houses Redevelopment Co., 110 A.D.3d 450, 451 [1st Dept 2013]).
In light of our determination, we need not reach the issue of whether a meritorious cause of action exists (id.).