Opinion
June 19, 1995
Appeal from the Supreme Court, Kings County (Scholnick, J.).
Ordered that the appeal from the order dated December 1, 1993, is dismissed, as that order was superseded by the order dated March 11, 1994, made upon renewal and reargument; and it is further,
Ordered that the order dated March 11, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
Where, as here, a plaintiff has a history of resisting disclosure and has twice disobeyed a court's disclosure order, such disobedience "fully supports the court's exercise of discretion in striking the plaintiff's complaint" (Bigman v. Dime Sav. Bank, 181 A.D.2d 648; see also, Flax v. Standard Sec. Life Ins. Co., 150 A.D.2d 894; Onorio v. Miller, 143 A.D.2d 80; Scharlack v. Richmond Mem. Hosp., 127 A.D.2d 580). For two years the plaintiff failed to respond to the respondents' demands for bills of particulars, failed to obey a court order directing her to comply with the respondents' demands, and ignored a conditional order of dismissal allowing her, despite her default in complying with the respondents' demand, an additional 30 days to comply with the court's prior discovery order.
In addition, once the conditional order of dismissal became effective by its terms (see, Bock v. Schiowitz, 168 A.D.2d 593), the plaintiff could only open up her default by establishing a reasonable excuse for her delay, as well as the merits of her claim (Donovan v. Getty Petroleum Corp., 174 A.D.2d 706, 707; White v. Leonard, 140 A.D.2d 518). The plaintiff has established neither in this case, offering no explanation whatsoever for her failure to supply timely discovery, and failing to produce an affidavit of merit from a physician competent to attest to the meritorious nature of her claim (see, e.g., Recht v. Teuscher, 176 A.D.2d 863; Hammer v. Hochberg, 128 A.D.2d 834). The unsworn letter she submitted from her psychiatric expert merely explores possible alternative theories of malpractice, while connecting none of them to the decedent's death.
Finally, the court did not err in adhering to its original determination upon the plaintiff's motion to renew and reargue, because the plaintiff did not identify any previously unknown facts, nor any mistake of fact or law that the court had committed in dismissing the complaint (see, e.g., Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22; Chiarella v. Quitoni, 178 A.D.2d 502;
Swenning v. Wankel, 140 A.D.2d 428). Joy, J.P., Friedmann, Krausman and Florio, JJ., concur.