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Failure to comply with preclusion order warrants dismissal of plaintiff's complaint; Court grants defendant's motion for summary judgment

Naranjo v. New Bushwick 68, LLC, et al., 5430/2020 (Sup. Ct. Kings Cty. September 16, 2020)

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A preclusion order is not to be trifled with. A recent decision of a Brooklyn court shows exactly how serious it can be.

In Naranjo v. New Bushwick 68, LLC, Plaintiff sought damages for injuries he allegedly sustained when he fell on the sidewalk in front of Defendant's premises. The parties conducted discovery and took a partial deposition of the Plaintiff, never completing it. Defendants attempted to schedule the continuation of Plaintiff's deposition, but they were rebuffed. That left no choice but to raise the issue with the Court.

The Court issued an unambiguous Order providing that, "Plaintiff shall appear for his previously ordered continued deposition on or before October 18, 2019 or Plaintiff shall be precluded from offering any medical evidence at the time of trial pursuant to CPLR 3126(2) without further order from the Court." Several weeks passed, and the time to appear for deposition expired without Plaintiff doing what he had to do.

Defendant moved for summary judgment on the grounds that, because Plaintiff failed to appear, he was now precluded from offering medical evidence at trial. Given the fatal blow to Plaintiff's case, i.e., no proof of damages, Defendant argued that the Court should grant summary judgment, dismissing Plaintiff's Complaint.

More time passed, allowing Plaintiff a decent opportunity to correct the problem. However, Plaintiff neither made himself available for the continued deposition, nor opposed the motion.

By Decision and Order dated September 16, 2020, the Honorable Carl J. Landicino, J.S.C., granted the Defendant's motion. "Courts have held that a motion for summary judgment by a Defendant should be granted in those situations where the motion is unopposed, and the Plaintiff has been precluded, in that the Plaintiff cannot establish a prima facie case", the Justice wrote. As there was no dispute that Plaintiff had not complied with the 2019 preclusion order, the Court granted the motion and dismissed the Plaintiff's Complaint as against the moving Defendant.

AGF&J partner Steven DiSiervi briefed and argued the Defendant's motion, with the assistance of associate James Brown.

Attorneys

Steven DiSiervi
James M. Brown

Practice Areas

Premises Liability