This motion by plaintiff seeks, among other things, to strike the answers of the defendants for their alleged failure to fully and timely comply with discovery and disclosure

obligations. In addition, plaintiff seeks to vacate the 90 day notice served on him, and to extend his time to file a Note of Issue.

Each of the four defendants oppose the plaintiff's motion; and in addition thereto, the defendants, Super Sammy Construction and Demicco Brothers, Inc. also cross-move for summary judgment dismissing the complaint for the failure of plaintiff to comply with discovery and with previous court orders mandating compliance. The plaintiff has not even responded to these cross-motions.

This case deals with claims arising from an incident that is alleged to have taken place on

May 23, 1999. The court has read, and incorporates herein, all of the relevant facts and procedural history set forth in the affidavits and documents submitted in support of the motion, and in opposition thereto.

Plaintiff states and requests "that the court strike the defendants' answers as there is court ordered and/or outstanding discovery, or compel compliance forthwith and thereupon strike the answers if there is no compliance". Although counsel for plaintiff acknowledges that the depositions of all parties in this matter remain outstanding, he implies that it is defendants who have failed to complete the outstanding depositions. Counsel for the plaintiff, however, admits and states that his client has been unable to fulfill his deposition obligation because he does not have the funds to return to New York from Puerto Rico, where he supposedly presently resides. [*2]Counsel opined that he believed plaintiff would have the funds to return to New York for a deposition "at the end of January 2007 or afterwards." The Court notes that this motion was not submitted to it until March 8, 2007, and there is no indication to date that the plaintiff has returned to New York, or has in any way attempted, since the making of the motion, to schedule a deposition. The Court also notes that the motion brought by plaintiff is "supported" in part by a "proposed" unsigned affidavit by plaintiff. In plaintiff's counsel's affirmation it is stated that counsel would "provide the executed affidavit forthwith." No such signed affidavit has been served or filed.

Defendants state that they have always been ready to proceed with depositions, and that, on at least three occasions, it has been the plaintiff who has sought adjournments. Moreover, defendant Super Sammy claims, and the record discloses, that this defendant has made at least three motions to compel discovery from plaintiff. These motions , which are dated June 17, 2004, August 20, 2004 and September 17, 2004, were made in separate matters that arose out of the same incident, all of which were ultimately consolidated by an order of this Court dated July 13, 2006. Each of these motions was apparently resolved by a discovery order, none of which were attached to any of the motion papers. In any event, it is clear that this Court signed a preliminary conference order dated April 21, 2005, which, among other things, required the plaintiff to appear for a deposition on July 17, 2005. Plaintiff failed to appear at the scheduled deposition. Thereafter, at a "Compliance and Re-Configuring" conference held on December 8, 2005, plaintiff was again directed to appear for an EBT on March 20, 2006. In addition, on February 27, 2006, pursuant to CPLR 3216, a notice was issued to the plaintiff which directed plaintiff to complete all outstanding discovery and serve and file a Note of Issue within 90 days. Said notice also cautioned plaintiff that a default in complying with said notice "will serve as a basis for the Court on its own motion to dismiss the action for unreasonably neglecting to proceed....." At the end of that 90 day period, defendants moved to dismiss the action; and by orders, each dated July 13, 2006, the motion to dismiss was denied, the three existing matters were consolidated into one case; and plaintiff's time to comply with all discovery obligations and to file a Note of Issue, was again was extended to December 31, 2006. Although the consolidation order extended plaintiff's time to file a Note of Issue until December 3, 2006, the discovery order, dated July 13, 2006, provided for the following more expeditious compliance with discovery obligations. It mandated:

(1) that the plaintiff respond to the preliminary conference order dated December 8, 2005

within thirty days;

(3) that plaintiff respond to all outstanding discovery within thirty days; and

"that plaintiff's failure to comply with all of the above will result in the preclusion of

such testimony and/or evidence at the time of trial."

Plaintiff served the instant motion on December 29, 2006, i.e., on the very eve of the expiration of the above consolidation and final extension order.

All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclosure obligations and to resolve all discovery and disclosure disputes, before seeking judicial intervention. Dilatory tactics, evasive conduct and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of wilful and contumacious conduct, and may result in severe adverse consequences and sanctions [See, all cases cited infra]. "Among the particular types of conduct of a party that have warranted the imposition of sanctions for non-disclosure are: disobedience to a court order compelling disclosure; willful failure to appear for examination before trial; willful failure or refusal to produce witnesses for examination; willful or contumacious refusal to produce documents or materials demanded; failure to respond or to properly answer interrogatories; refusal to exchange or make available to the adverse party medical reports; refusal to give authorization for disclosure of medical reports where privilege waived; refusal to answer questions during deposition; ignoring a notice for discovery and inspection; removal or destruction of property sought to be produced and inspected; wilful failure to sign a deposition; falsely denying the possession of documents sought to be produced; refusal to agree to a mutually convenient date for examination; dilatory tactics, evasive conduct and willful obstruction of a discovery proceeding; and belated compliance with disclosure order or conditional preclusion order. [44A NY Jur 2d Disclosure §353].

"The court may also impose sanctions because of an attorney's conduct relating to disclosure such as failure to honor disclosure rules and stipulation between parties on disclosure, deliberate and contumacious delay between the commencement of the action and plaintiff's compliance with the court's discovery orders, or disruptive tactics during the deposition questioning of his client." [44A NY Jur.2d Disclosure §353].

In addition, it should be noted, that attorneys and the parties have a professional and/or legal obligation to fully comply with all court orders, including those which relate to discovery and disclosure demands. Failure to comply with such orders will result in sanctions (both monetary and otherwise) which may among other things, severely affect the prosecution or defense of underlying lawsuit.

Sanctions, which have been suggested and upheld, by Appellate Courts, include (without limitation thereto) severe monetary sanctions as well as dismissal of a complaint or an answer. (See e.g., Figdor v. City of New York, 33 AD3d 560, 823 NYS2d.385 [1st Dept. 2006], [answer struck unless $10,000 sanction paid within 30 days]; Jones v. Green, 34 AD3d 260, 825 NYS2d 446 [1st Dept. 2006] [complaint dismissed because of plaintiff's long continued pattern of non-compliance]; Rampersad v. New York City, 10 Misc 3d 1059A, 809 NYS2d 483, 2005 NY Slip Op 52023 (U) (Victor, J., 2005), aff'd, 30 AD3d 218, 817 NYS2d 20 [1st Dept. 2006] [answer struck for failure to comply with a conditional disclosure order]; Rojas v. City of New York, 27 AD3d 323, 813 NYS2d 64, [1st Dept. 2006]; affirming an order by Supreme Court Bronx County (Paul A. Victor, J), entered 9/2/05 [answer struck for failure to comply with a conditional disclosure order].

In Figdor, supra , the First Department modified the order of the court below (which had denied plaintiff's motion) to the extent of directing that defendant's answer be stricken unless defendant pays plaintiff's attorney $10,000. For emphasis, the Appellate Division also took the opportunity to instruct the IAS courts "to employ a more proactive approach in such [*4]circumstances upon learning that a party has repeatedly failed to comply with discovery orders." For added impact, that court emphasized that: "[The IAS courts] have an affirmative

obligation to take such additional steps as are necessary to ensure future compliance." (emphasis

added)

It must be noted from all of the above, that a pattern of non-compliance with court orders and/or discovery demands may result in a final and binding dismissal of an answer or a complaint. It should especially be noted by counsel for plaintiffs that the striking of a complaint may result, not only in the termination of the cause of the action, but also in the inability to revive same. (Andrea v. Armone, 5 NY3d 514, 806 NYS2d 453 [2005].) In the Andrea case, the New York Court of Appeals held that dismissal of an action for failure to comply with a discovery order is a dismissal "for neglect to prosecute the action within the meaning of CPLR 205 (a); [and that], therefore, ... actions filed after the dismissal of previous actions by the same plaintiffs, are not saved by CPLR 205 (a) from the bar of the statute of limitations." (emphasis added).

Compliance with Conditional Orders

A conditional discovery order becomes "absolute" upon the failure of the defaulting party to comply with its terms. (D'Aloisi v. City of New York, 7 AD3d 750, 776 NYS2d 901 [2d Dept. 2004].) However, the failure to comply is not under all circumstance inexcusable, and the party which fails to comply may, upon a proper showing, avoid the effect of the conditional order. In order to avoid the effect of a conditional order, the party seeking relief must demonstrate either (1) compliance with the conditional order, or (2) an excusable default and a meritorious defense. (D'Aloisi v. City of New York, supra ; Frankel v. Hirsch, 2 AD3d 399, 767 NYS2d 863 [2d Dept. 2003]; Weitzenberg v. Nassau County Dept. of Recreation and Parks, 282 AD2d 741, 724 NYS2d 357 [2d Dept. 2001].)

This court has not hesitated to dismiss an answer and to declare that a conditional order has become "absolute" upon a "defendant's unjustified failure to comply" with its terms. (See, Belton v. Board of Education of the City of New York, N.Y.L.J., May 2, 2005, at 19, col. 3 [Supreme Court, Bronx County]; Carmody Industries Inc. v. TCL Contractors Corp., N.Y.L.J., January 21, 2005, at 20, col. 3 [Supreme Court, Bronx County].)

DISCUSSION

The dilatory tactics and the repeated failure by plaintiff to comply with discovery and

disclosure obligations, and with multiple court orders and notices which mandated discovery compliance, requires this court to impose a meaningful and appropriate sanction which will insure future compliance as well as deter this type of behavior.

Plaintiff has not only failed to comply with the preliminary conference order, and multiple interim orders, but also with the final conditional order which granted him an additional generous extension of time within which to comply. Moreover, counsel for plaintiff now presents this court with a totally frivolous and disingenuous motion which seeks an additional extension based on, among other things, a false claim that defendants' caused the delay. Since the conduct of the plaintiff herein appears to be even more egregious then that in Figdor, Belton and Rampersad, , supra , the ultimate sanction, dismissal of the complaint is warranted.

The court denies plaintiff's motion and grants the cross-motions to the following extent: [*5]

the complaint is dismissed ; and counsel for plaintiff must pay the sum of $ 2000 to counsel for defendant Super Sammy as partial compensation for said defendant's previous extensive motion practice, and $500 each to counsel for defendants City of New York, Consolidated Edison and Demicco Brothers, Inc

This is the order and decision of the Court.

Date_________________________________

Paul A. Victor, J.S.C.