Opinion
2212-2212A
November 14, 2002.
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April 25, 2001, dismissing the complaint and awarding defendants sanctions against plaintiff's counsel in the amount of $5,000, and bringing up for review an order, same court and Justice, dated March 28, 2001, which granted defendants' motion for summary judgment, denied plaintiff's cross motion to vacate prior orders of preclusion and for summary judgment on its claims, and imposed sanctions, unanimously affirmed, with costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
AMOS WEINBERG, for plaintiff-appellant.
BRADLEY A. ALPERIN EILEEN COHAN, for defendants-respondents.
Before: Williams, P.J., Nardelli, Tom, Lerner, JJ.
Although preclusion is a drastic remedy, plaintiff's unexplained failure to comply with at least three discovery orders, two of which were conditional preclusion orders, warranted the preclusion of plaintiff's documentary evidence (see Shaw v. Bronfman, 284 A.D.2d 267, lv dismissed 97 N.Y.2d 725; Siegman v. Rosen, 270 A.D.2d 14). This rendered plaintiff unable to establish a prima facie case and therefore required dismissal of the complaint (see Cano v. BLF Realty Holding Corp., 243 A.D.2d 390). Plaintiff's repeated and inexcusable discovery delays, as well as its refusal to discontinue the action upon preclusion of its evidence, and its frivolous request for summary judgment, in an action of dubious merit to begin with, justified the imposition of sanctions against plaintiff's counsel in the amount of $5,000 (see New v. Scores Entertainment, Inc., 255 A.D.2d 108).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.