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Persistence wins the day; fifth order compelling disclosure applied to dismiss to dismiss "grossly derelict" plaintiffs' complaint

McQueen v. Parks, Index No. 0308964/2012 (Sup. Ct. Bronx Cty. January 9, 2019)

Plaintiffs were ordered on no less than five occasions to furnish a response to the defendant's post-Examination Before Trial demands. The responses never arrived, and a Bronx court dismissed plaintiff's Complaint.

The process took more than a year. Defendant served post-EBT demands but did not receive responses and so routinely took the matter up in Court at a conference. The issue was addressed in a December 2017 Order, and then over and over again, in a total of five Orders - the last being self-executing. None of the Orders did, in fact, compel the plaintiffs, and even the defendant's motion to dismiss the Complaint, based on the Orders, had a mild effect. Plaintiffs just served some unsigned medical authorizations. When defendant pointed this out - in Reply on the motion to dismiss - plaintiff did nothing to correct the problem.

Enough was finally enough. "The plaintiffs have been grossly derelict in compliance with Court ordered discovery, deemed now to be willful and contumacious", the Court wrote.

AGF&J associate Seth A. Nirenberg briefed and argued the defendant's motion.