New York and Presbyterian Hospital v Safeco Insurance Co. of America, 2007 NY Slip Op 32774(U), Sup Ct, NY County,
Mount Sinai Hosp. v Chubb Group of Ins. Cos., 2007 NY Slip Op 06650, App. Div. 2d.
State Farm Mut. Auto. Ins. Co. v Hertz Corp., 2007 NY Slip Op 06664, App. Div. 2d.
On July 15, 2005, the plaintiff entered into a stipulation with the defendants and the third-party defendant requiring it to respond to their discovery requests within 60 days. The stipulation, which was so-ordered by the Supreme Court on July 25, 2005, provided that “[t]he plaintiff will be precluded at the time of trial from introducing into evidence any matter contained in the demands set forth in Paragraph “A,” above and not served within sixty (60) days of the date herein.” It is undisputed that the plaintiff failed to serve its response to the demands, including the demand for a bill of particulars, within the relevant 60-day period. A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440, 440-441; Siltan v City of New York, 300 AD2d 298). To avoid the adverse impact of the conditional so-ordered stipulation, the plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see Gilmore v Garvey, 31 AD3d 381; Goldsmith Motors Corp. v Chemical Bank, supra; Gutenplan v Dauman, 154 AD2d 337, 337-338). The plaintiff failed to meet this burden. Since the order of preclusion prevented the plaintiff from making out a prima facie case, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint (see Gilmore v Garvey, supra; Cafaro v Emergency Servs. Holding, Inc., 11 AD3d 496, 498-499; Alphonse v UBJ Inc., 266 AD2d 171).
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