I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 003) numbered 50-64, [*2]69-75 were read on this motion by Defendants 676 Rental LLC and Pavel Yarmalovich, pursuant to CPLR §3126, for an order precluding Plaintiff Frank Russo from offering evidence, presenting testimony, and testifying at trial on the issue of damages:

Notice of Motion, Affirmation in Support, Affirmation of Good Faith, and Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 50, 51, 52); Affirmation in Opposition and Exhibits (NY St Cts Filing [NYSCEF] Doc No. 69); Memorandum of Law in Opposition (NY St Cts Filing [NYSCEF] Doc No. 73); and Reply Affirmation (NY St Cts Filing [NYSCEF] Doc No. 74).

Upon the foregoing papers, and after due deliberation thereon, the Decision and Order of the Court is as follows.

This is an action to recover damages for personal injuries allegedly sustained by Plaintiff Frank Russo arising from a motor vehicle accident that occurred on April 12, 2024, at or near the intersection of Arthur Kill Road and Richmond Avenue, in the County of Richmond, City and State of New York. Plaintiff alleges that he was a pedestrian lawfully present upon the roadway when he was struck by a motor vehicle bearing Pennsylvania license plate number MBN5307, which he attributes to the negligence of Defendants. (NY St Cts Filing [NYSCEF] Doc No. 53).

Plaintiff commenced this action by filing a Summons and Verified Complaint on or about May 7, 2024. (see id). Defendants joined issue by service of a Verified Answer on or about July 30, 2024, thereby placing the matter at issue and triggering the parties' mutual discovery obligations under the CPLR. (NY St Cts Filing [NYSCEF] Doc No. 54).

Following joinder of issue, this Court conducted a Preliminary Conference on February 10, 2025, and issued a Preliminary Conference Order establishing specific disclosure deadlines and obligations. (NY St Cts Filing [NYSCEF] Doc No. 55). That Order directed Plaintiff to appear for an examination before trial on or before April 8, 2025, and further directed that Defendants' independent medical examinations of Plaintiff be conducted within forty-five days following Plaintiff's deposition. (see id at page 3). The Order further expressly warned the parties that failure to comply with the Court's discovery directives could result in the imposition of sanctions, including preclusion or the striking of pleadings. (see id at page 4).

A Compliance Conference was subsequently held on April 16, 2025, at which time the Court reaffirmed Plaintiff's obligation to appear for deposition and reiterated the requirement that Plaintiff submit to independent medical examinations pursuant to the deadlines set forth in the Preliminary Conference Order. (NY St Cts Filing [NYSCEF] Doc No. 56). Plaintiff thereafter appeared for his deposition on May 7, 2025, thereby satisfying that aspect of his disclosure obligations. (NY St Cts Filing [NYSCEF] Doc No. 57).

Following Plaintiff's deposition, Defendants served post-deposition discovery demands on May 12, 2025, seeking additional records, authorizations, and information necessary to evaluate Plaintiff's alleged injuries and prepare their defense. (NY St Cts Filing [NYSCEF] Doc No. 58).

On May 20, 2025, this Court conducted an additional Compliance Conference and issued an Order directing Plaintiff to respond to Defendants' post-deposition demands pursuant to the CPLR and to submit to independent medical examinations within forty-five days. (NY St Cts Filing [NYSCEF] Doc No. 59). Thereafter, on July 15, 2025, this Court issued another Compliance Conference Order directing Plaintiff to respond to Defendants' post-deposition [*3]demands within fourteen days and to appear for independent medical examinations within thirty days. (NY St Cts Filing [NYSCEF] Doc No. 60). These Orders constituted clear and unequivocal directives of the Court, imposing mandatory disclosure obligations upon Plaintiff.

In compliance with these directives, Defendants scheduled independent medical examinations of Plaintiff with designated physicians. (NY St Cts Filing [NYSCEF] Doc Nos. 61; 62; 63). Specifically, Defendants scheduled Plaintiff to appear for examinations on August 8, 2025, September 4, 2025, and September 5, 2025. (see id). These examinations were duly noticed and scheduled in accordance with the Court's discovery Orders. (NY St Cts Filing [NYSCEF] Doc Nos. 61; 62; 63; 64).

It is undisputed that Plaintiff failed to appear for each of these scheduled independent medical examinations. Defendants represent that they undertook multiple efforts to facilitate Plaintiff's attendance, including contacting Plaintiff's counsel to confirm attendance, re-sending designation letters, and offering transportation accommodations to alleviate any logistical burden upon Plaintiff. Despite these efforts, Plaintiff failed to appear for the scheduled examinations.

Defendants further contend that Plaintiff failed to timely respond to post-deposition discovery demands, notwithstanding express Court Orders directing such compliance. While Plaintiff has since served responses to post-deposition demands on February 11, 2026, such compliance occurred only after Defendants were compelled to bring the instant motion seeking sanctions pursuant to CPLR § 3126. (NY St Cts Filing [NYSCEF] Doc No. 72).

Plaintiff, in opposition, asserts that his failure to appear for the scheduled independent medical examinations was attributable to ongoing medical treatment, severe physical limitations, and spinal surgery, and that such circumstances were communicated to Defendants' counsel. (NY St Cts Filing [NYSCEF] Doc No. 70). Plaintiff further asserts that he is now willing and able to appear for outstanding independent medical examinations. (see id).

Defendants, in reply, dispute the adequacy and credibility of Plaintiff's explanations and maintain that Plaintiff's repeated failures to comply with Court-ordered discovery constitute willful and contumacious conduct warranting preclusion.

CPLR § 3126 provides that where a party refuses to obey an order for disclosure or willfully fails to disclose information required to be disclosed, the Court may make such orders as are just, including orders precluding the disobedient party from introducing evidence. The imposition of sanctions pursuant to CPLR § 3126 lies within the sound discretion of the trial court (see McArthur v New York City Hous. Auth., 48 AD3d 431 [2d Dept 2008]).

It is well established that compliance with court-ordered discovery is not optional, aspirational, or discretionary. Discovery Orders represent binding judicial mandates that must be obeyed. The Court of Appeals has unequivocally held that litigants who ignore discovery obligations do so at their peril, and that trial courts possess both the authority and the obligation to enforce compliance through appropriate sanctions (see Kihl v Pfeffer, 94 NY2d 118 [1999]).

The Appellate Division has repeatedly held that the drastic sanction of preclusion is warranted where a party's conduct demonstrates willful and contumacious disregard for discovery obligations. Willfulness and contumacious conduct may be inferred from repeated failures to comply with discovery demands and court orders, particularly where such failures occur without adequate explanation (see Bodine v. Ladjevardi, 284 AD2d 351 [2d Dept 2001]).

In the present case, the record establishes that Plaintiff failed to comply with multiple [*4]Court Orders directing him to appear for independent medical examinations and to provide discovery responses. These Orders were clear, unequivocal, and mandatory. Plaintiff's failure to appear for multiple independent medical examinations, despite explicit Court directives and repeated efforts by Defendants to secure compliance, constitutes a serious violation of his discovery obligations.

Independent medical examinations are not ancillary or discretionary aspects of discovery in personal injury litigation. Rather, they constitute a fundamental component of the disclosure process, essential to a defendant's ability to evaluate the nature, extent, causation, and permanency of a plaintiff's alleged injuries. Plaintiff's failure to submit to independent medical examinations deprived Defendants of critical discovery and interfered with their ability to prepare their defense.

Moreover, Plaintiff's delayed compliance with post-deposition discovery demands further reflects a pattern of delayed compliance with discovery obligations. While Plaintiff ultimately served responses, such compliance occurred only after Defendants were compelled to seek judicial intervention. Compliance with discovery obligations only after the filing of a sanctions motion does not erase or excuse prior noncompliance.

The Court rejects any suggestion that compliance with Court Orders is optional or that litigants may unilaterally delay compliance without consequence. The authority of the Court to enforce its Orders is essential to the proper functioning of the judicial system. Without meaningful enforcement, discovery Orders would be rendered meaningless, and the orderly administration of justice would be compromised.

Nevertheless, the Court must exercise its discretion in a manner that is both firm and fair. While Plaintiff's conduct warrants the imposition of sanctions, the Court finds that the appropriate remedy at this juncture is a conditional order of preclusion.

Conditional orders of preclusion are recognized as powerful and effective enforcement mechanisms. Such orders place the noncompliant party on clear and unequivocal notice that continued noncompliance will result in automatic and irreversible consequences, without the need for further motion practice. Conditional orders serve to enforce compliance while affording the noncompliant party one final opportunity to fulfill their discovery obligations.

The Court finds that a conditional order of preclusion is particularly appropriate here, given Plaintiff's repeated failures to comply with Court-ordered discovery and the necessity of ensuring that discovery proceeds without further delay or obstruction.

Accordingly, it is hereby

ORDERED that Defendants' motion pursuant to CPLR § 3126 is granted to the extent of issuing a conditional order of preclusion; and it is further

ORDERED that Plaintiff shall appear for duly noticed independent medical examinations and shall fully comply with all outstanding discovery obligations within thirty (30) days of service of this Decision and Order with notice of entry; and it is further

ORDERED that in the event Plaintiff fails to appear for such independent medical examinations or otherwise fails to fully comply with this Order within said thirty (30) day period, Plaintiff shall be automatically precluded, without further motion practice, from offering evidence, presenting testimony, or testifying at trial on the issue of damages; and it is further

ORDERED that this conditional order of preclusion shall be self-executing, and upon [*5]Plaintiff's failure to comply within the time specified, preclusion shall take effect automatically and without further application to the Court; and it is further

ORDERED that in the event Plaintiff timely complies with this Order, Defendants' motion shall otherwise be deemed denied.

This constitutes the Decision and Order of the Court.