Appeal by third-party defendant from an order of the Civil Court, Queens County (J. Golia, J.), entered on March 25, 2004, which denied her cross motion for summary judgment and from a companion order of the same court, entered on March 25, 2004, which denied defendant's motion for summary judgment.

Orders unanimously reversed without costs and defendant's motion and third-party defendant's cross motion for summary judgment dismissing plaintiff's complaint and third-party complaint, respectively, granted.

The so-ordered stipulation entered into between the parties required the injured infant [*2]plaintiff to appear for a deposition on or before October 31, 2003, or "be precluded from offering any evidence or testimony at the time of trial." The so-ordered stipulation functioned as a conditional order of preclusion which became absolute upon the injured plaintiff's failure to comply (see Coleman v Thompson, 5 Misc 3d 136[A], 2004 NY Slip Op 51543[U] [App Term, 2d & 11th Jud Dists]). Under the circumstances, plaintiff is unable to establish a prima facie case and the defendant's motion and third-party defendant's cross motion for summary judgment dismissing the plaintiff's complaint and the third-party complaint, respectively, should have been granted.
Decision Date: June 03, 2005