Opinion
570198/07.
Decided on January 23, 2008.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered December 19, 2006, which conditionally granted its motion to dismiss the complaint.
McKEON, P.J., DAVIS, HEITLER, JJ.
Order (Mitchell J. Danziger, J.), entered December 19, 2006, reversed to the extent appealed from, and defendant's motion to dismiss granted unconditionally, with $10 costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint as against him.
Plaintiffs' wilful and contumacious conduct in delaying and obstructing the disclosure process may be inferred from the failure of plaintiff Cordero to appear for no less than 16 scheduled medical examinations over two years and plaintiffs' disregard of numerous court orders, including two orders directing preclusion for noncompliance ( see Kihl v Pfeffer, 94 NY2d 118; Rollieson v Hollywood Entertainment Corp., 38 AD3d 238). Plaintiffs' counsel's claim that his clients could not be located is not a justifiable excuse for noncompliance with a conditional order of preclusion ( see Reidel v Ryder TRS, Inc., 13 AD3d 170; Perez v New York City Hous. Auth., 229 AD2d 310). Plaintiffs' repeated noncompliance has resulted in substantial and unnecessary delay and expense, which, contrary to the suggestion of plaintiffs' counsel, should not be viewed merely as "the cost" of defendant "doing business," but instead reflects plaintiffs' blatant disregard of statutory disclosure requirements. Under the circumstances, defendant's motion to dismiss should have been granted unconditionally ( see CPLR 3216).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.