Hughes v Brooklyn Skating, LLC (2014 NY Slip Op 05951)
Hughes v Brooklyn Skating, LLC
2014 NY Slip Op 05951
Decided on August 27, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on August 27, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentWILLIAM F. MASTRO, J.P.
PLUMMER E. LOTT
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2012-07252
2013-03271
 (Index No. 8991/07)

[*1]Barrett Hughes, etc., et al., appellants, 
vBrooklyn Skating, LLC, et al., defendants third-party plaintiffs- respondents; Tricorp Amusements, Inc., third-party defendant-respondent.
The Cochran Firm, New York, N.Y. (Paul A. Marber, Joseph S. Rosato, and Gerard A. Lucciola of counsel), for appellants.
Cruser, Mitchell & Novitz, LLP, Farmingdale, N.Y. (Beth S. Gereg of counsel), for defendants third-party plaintiffs-respondents.
Charles J. Siegel, New York, N.Y. (Loretta J. Hottinger of counsel), for third-party defendant-respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 4, 2012, which denied their motion to restore the action to the active calendar and granted the cross motion of the defendants Brooklyn Skating, LLC, and Empire Roller Rink Center, joined in by the third-party defendant, Tricorp Amusements, Inc., to dismiss the complaint, and (2) so much of an order of the same court dated January 17, 2013, as, in effect, denied that branch of the plaintiffs' motion which was to vacate a conditional order of preclusion of the same court dated April 24, 2009.
ORDERED that the order dated June 4, 2012, is affirmed; and it is further,
ORDERED that the order dated January 17, 2013, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
In this action seeking damages for personal injuries, the Supreme Court issued multiple orders directing the parties to comply with certain discovery demands. On April 24, 2009, a conditional preclusion order directed that discovery be provided within 30 days, or the plaintiffs would be "automatically precluded." The plaintiffs failed to timely comply with this order. On or about December 9, 2009, the action was marked "Other Final Disp. Pre Note." More than two years later, the plaintiffs moved to restore the action to the court's calendar. The court denied the [*2]plaintiffs' motion and granted the cross motion of the defendants Brooklyn Skating, LLC, and Empire Roller Rink Center, joined in by the third-party defendant, Tricorp Amusements, Inc. (hereinafter collectively the respondents), to dismiss the complaint. The plaintiffs then moved, inter alia, to vacate the conditional preclusion order, and the Supreme Court denied that branch of the motion.
A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order (see Gibbs v St. Barnabas Hosp., 16 NY3d 74; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821). As a result of the plaintiffs' failure to timely comply with the conditional order of preclusion, that conditional order became absolute (see Archer v Capital Fund, L.P. v GEL, LLC, 95 AD3d 800, 801; Keenan v Fiorentino, 84 AD3d 740; Wei Hong Hu v Sadiqi, 83 AD3d at 821; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979, 980; Rodriguez v Zeichner, 50 AD3d 999, 1000). To be relieved of the adverse impact of the conditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the order and the existence of a potentially meritorious cause of action (see Keenan v Fiorentino, 84 AD3d 740; Wei Hong Hu v Sadiqi, 83 AD3d at 821). The plaintiffs failed to demonstrate either (see G.D. Van Wagenen Fin. Servs., Inc. v Sichel, 43 AD3d 1104, 1105; Kumar v Yonkers Contr. Co. Inc., 14 AD3d 493, 494; Baturov v Marchewka, 10 AD3d 345). Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motion which was to vacate the conditional preclusion order and properly granted the respondents' cross motion to dismiss the complaint on the ground that the plaintiffs failed to comply with the conditional order of preclusion.
In light of our determination, we need not address the plaintiffs' remaining contention.
MASTRO, J.P., LOTT, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


