        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

871
CA 11-02538
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


IRIC BURTON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DR. ANDREW MATTELIANO, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


FRANK S. FALZONE, BUFFALO (KATIE HARROD OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (MARK R. AFFRONTI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


      Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered September 2, 2011. The order granted the motion
of defendant Andrew Matteliano, M.D., incorrectly sued as Dr. Andrew
Matteliano, to dismiss the complaint and denied the cross motion of
plaintiff for reargument and vacatur of an order entered June 29,
2011.

     It is hereby ORDERED that said appeal from the order insofar as
it denied leave to reargue is unanimously dismissed and the order is
affirmed without costs.

     Memorandum: Contrary to plaintiff’s contention, Supreme Court
properly granted the motion of Andrew Matteliano, M.D., incorrectly
sued as Dr. Andrew Matteliano (defendant), seeking dismissal of the
action against him pursuant to CPLR 3126 (3). Plaintiff commenced
this action against, inter alia, defendant contending that he
improperly and without authorization disclosed plaintiff’s medical
records to plaintiff’s employer, resulting in plaintiff’s termination
from employment. Defendant made a pre-answer motion to dismiss the
complaint pursuant to CPLR 3211 (a) (7). Although the court granted
that motion in its entirety, we reinstated the first cause of action
on a prior appeal (Burton v Matteliano, 81 AD3d 1272, lv denied 71
NY3d 703). Defendant thereafter filed an answer and submitted
numerous discovery demands. Plaintiff failed to respond to any of
those demands, and defendant moved for an order precluding plaintiff
from producing any evidence at the time of trial due to the willful
failure to provide discovery responses.

     In support of that motion and as required by 22 NYCRR 202.7 (a)
and (c), defendant’s attorney outlined his good faith efforts to
resolve the discovery dispute, which included contacting plaintiff’s
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                                                         CA 11-02538

attorney numerous times to request compliance with the demands and
affording plaintiff’s attorney an additional two weeks to comply with
the demands. It was only after plaintiff’s attorney failed to comply
with the demands during that two-week period that defendant’s attorney
made the motion for preclusion. Although neither plaintiff nor his
attorney responded to the motion for preclusion or appeared at oral
argument of the motion, plaintiff’s attorney responded to some of the
demands. He did not, however, include the requested medical records,
authorizations to obtain medical records, names of witnesses or
authorizations requested in the demand for collateral sources. The
court thereafter granted defendant’s motion for preclusion “unless
within thirty . . . days following service of this Order, [p]laintiff
responds to the defendant’s outstanding discovery demands.”

     On the same day that the court issued the preclusion order,
defendant’s attorney mailed to plaintiff’s attorney a copy of that
order and a letter delineating all of the deficiencies in the
discovery responses. Defendant’s attorney requested “full and
complete responses to the . . . demands within thirty days . . . as
directed” in the preclusion order. When plaintiff’s attorney failed
to respond, defendant filed the instant motion seeking dismissal of
the action against him pursuant to CPLR 3126 (3). Plaintiff cross-
moved for leave to reargue the motion for preclusion and sought
vacatur of the underlying preclusion order.

     As noted above, we conclude that the court properly granted
defendant’s motion. “[T]he conditional order [of preclusion] was
self-executing and [plaintiff’s] failure to produce [the requested]
items on or before the date certain rendered it absolute” (Wilson v
Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [internal
quotation marks omitted]; see Gibbs v St. Barnabas Hosp., 16 NY3d 74,
78; Northway Eng’g v Felix Indus., 77 NY2d 332, 334; Foster v
Dealmaker, SLS, LLC, 63 AD3d 1640, 1641, lv denied 15 NY3d 702).
Contrary to plaintiff’s contention, defendant was not required to
comply with 22 NYCRR 202.7 (a) or (c) on the motion to dismiss the
action inasmuch as he had already established his good faith attempts
to resolve the discovery dispute in the initial motion for preclusion
and, as noted above, the preclusion order became absolute upon
plaintiff’s failure to comply with its terms.

     Plaintiff further contends that the court improperly denied his
cross motion for leave to reargue the initial motion for preclusion
and vacatur of the preclusion order. First, we note that no appeal
lies from an order denying leave to reargue, and we therefore dismiss
the appeal from the order insofar as it denied leave to reargue (see
generally Lindsay v Funtime, Inc., 184 AD2d 1036, 1036; Empire Ins.
Co. v Food City, 167 AD2d 983, 984). Second, with respect to that
part of the cross motion seeking vacatur of the preclusion order,
plaintiff failed to establish any basis for that relief. The Court of
Appeals has “made [it] clear that to obtain relief from the dictates
of a conditional order that will preclude a party from submitting
evidence in support of a claim or defense, the defaulting party must
demonstrate (1) a reasonable excuse for the failure to produce the
requested items and (2) the existence of a meritorious claim or
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                                                         CA 11-02538

defense” (Gibbs, 16 NY3d at 80). Here, plaintiff offered no excuse
for his failure to provide the requested items and failed to establish
the existence of a meritorious claim.

     Because the preclusion order is in effect, plaintiff is precluded
from presenting evidence sufficient to establish a prima facie case,
and defendant is therefore entitled to dismissal of the action against
him (see Foster, 63 AD3d at 1641).




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
