Opinion
2003-01121
Submitted October 8, 2003.
November 3, 2003.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Durante, J.), dated December 17, 2002, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126.
Ted M. Tobias, Melville, N.Y. (Gary Austin Manso of counsel), for appellants.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the complaint pursuant to CPLR 3126 is granted, and the complaint is dismissed.
The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3126. The plaintiff's willful and contumacious conduct can be inferred from his repeated failure to comply with orders directing him to appear for an examination before trial and the inadequate excuses offered for his failure to comply ( see Porreco v. Selway, 225 A.D.2d 752). Accordingly, that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3126 should have been granted.
RITTER, J.P., SMITH, FRIEDMANN, H. MILLER and CRANE, JJ., concur.