Notice of Motion, Affirmation, with Exhibits 1,2
On May 5, 2004, claimant failed to appear for an examination before trial
(EBT), which had been timely noticed by the defendant. Defendant then moved for
an order to compel the claimant to appear for an EBT, and by a Decision and
Order dated August 10, 2004
, this Court
directed claimant to attend an EBT to be scheduled by defendant.
Pursuant to the prior Decision and Order, defendant served claimant with a
notice scheduling an EBT for February 24, 2005. As set forth in the Affirmation
of defendant's attorney (see Item 2), claimant failed to appear for this
scheduled EBT, and did not notify defendant's attorney that he was unable to
Based on claimant's failure to attend the scheduled EBT as required by this
Court's Decision and Order of August 10, 2004, defendant now moves for an order
of dismissal. Claimant has not submitted any papers in opposition to this
motion, nor has he contacted the Court in any manner whatsoever regarding the
status of this claim. Additionally, the Court notes that in its prior Decision
and Order of August 10, 2004 claimant was to be precluded from offering any
testimony in support of his claim in the event that he failed to appear for the
Pursuant to CPLR § 3126, several sanctions may be applied against a party
who refuses to submit to disclosure. These sanctions are clearly available if,
as exists in the instant claim, a party disobeys an order directing disclosure.
In the instant claim, claimant has failed to appear for an EBT on two separate
occasions, with the second refusal being in direct violation of an order of this
Court requiring his attendance. As a result, defendant's request for the
ultimate sanction of dismissal of the claim is warranted. Claimant, by his
actions, has completely compromised defendant's ability to defend this claim.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-69840 is hereby GRANTED; and it is further
ORDERED, that Claim No. 100133 is hereby DISMISSED.