Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered March 22, 2005, deemed (CPLR 5501 [c]) an appeal from a judgment of the same court entered September 22, 2005. The judgment, entered upon the order entered March 22, 2005 denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

Judgment affirmed without costs.

By order entered April 28, 2004, the Civil Court precluded plaintiff from introducing evidence responsive to defendant's discovery demands unless plaintiff responded to those demands within 10 days of service of a copy of the order with notice of entry. Plaintiff failed to do so and subsequently moved for summary judgment, which motion was denied.

In our opinion, the court below properly denied plaintiff's motion for summary judgment and granted defendant's cross motion dismissing the complaint, since, by failing to comply with the terms of the preclusion order, plaintiff was foreclosed from introducing evidence in support of its prima facie case.

Furthermore, even if plaintiff had not been so precluded, we note that in support of its motion, plaintiff attached a vague, nonspecific affidavit of its officer. Nothing in said affidavit identified what services were rendered, when they were rendered, the amounts which were owed, or the dates on which the claims were mailed. Instead, plaintiff alleged, without any specific reference, that the "within bills" were accurate and that the proofs of mailing were "available for inspection by those in need." In the absence of any facts specific to the instant case, plaintiff did not establish its entitlement to judgment as a matter of law.

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: February 7, 2007