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ZAPCO 1500 INVESTMENT L.P., PLAINTIFF-APPELLANT, v. JOEL WIENER, ET AL., DEFENDANTS-RESPONDENTS.

Although preclusion is a drastic remedy, plaintiff's unexplained failure to comply with at least three discovery orders, two of which were conditional preclusion orders, warranted the preclusion of plaintiff's documentary evidence (see Shaw v. Bronfman, 284 A.D.2d 267, lv dismissed 97 N.Y.2d 725; Siegman v. Rosen, 270 A.D.2d 14). This rendered plaintiff unable to establish a prima facie case and therefore required dismissal of the complaint (see Cano v. BLF Realty Holding Corp., 243 A.D.2d 390). Plaintiff's repeated and inexcusable discovery delays, as well as its refusal to discontinue the action upon preclusion of its evidence, and its frivolous request for summary judgment, in an action of dubious merit to begin with, justified the imposition of sanctions against plaintiff's counsel in the amount of $5,000 (see New v. Scores Entertainment, Inc., 255 A.D.2d 108).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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ZAPCO 1500 INVESTMENT L.P. v. WIENER
(Nov 14, 2002)