By notice of motion filed on October 21, 2009, under motion sequence number four, defendant Anthony L. Johnson (Johnson), moves pursuant to CPLR § 3126 for an order restoring the case to the active calendar for the purpose of dismissing it. Plaintiff did not appear or submit opposition to the motion.

On June 27, 2006 plaintiff commenced the instant action for personal injuries he allegedly sustained on February 11, 2004. The complaint alleges that Johnson negligently drove his 1990 Ford automobile and struck the plaintiff while he was walking in the vicinity of Macon Street near the intersection of Saratoga Avenue in Brooklyn, New York. On January 12, 2007, defendant joined issue by its verified answer. A note of issue has not been filed.

Johnson's motion papers consist of an attorney's affirmation, an affirmation of good faith (pursuant to 22 NYCRR 202.7) and eight exhibits labeled A through I. Exhibit A is the summons and verified complaint. Exhibit B is Johnson's verified answer and various disclosure demands. Exhibit C is Preliminary Conference Order dated June 12, 2007. The order directed plaintiff to appear for an examination before trial on October [*2]10, 2007. Exhibit D is a Compliance Conference Order dated March 12, 2008. This order directed that depositions be held on or before April 22, 2008 and that a note of issue be filed by July 30, 2008. Exhibit E is an E-Law print out reflecting that on August 15, 2008, the case was marked off for failure to file a note of issue. It also reflects that on April 24, 2009, the case was once again marked off for failure to file a note of issue. Exhibit F is a prior motion of the defendant seeking the same relief sought in the instant motion, namely restoration of the action for purposes of dismissal. Exhibit G is a copy of the Court's order dated October 31, 2008, which decided the motion. The order directed that depositions were to be held on January 30, 2009. The order further stated, that plaintiff's failure to be deposed on that date will result in preclusion of plaintiff from submitting evidence at trial. The order also directed that the Note of Issue be filed by April 13, 2009. Exhibit H is a copy of an order to show cause filed by plaintiff's counsel seeking to be relieved. The affirmation of plaintiff's counsel demonstrated that the plaintiff was not cooperating with counsel by making himself incommunicado. Exhibit I is a copy of the court's decision denying the motion by plaintiff's counsel to be relieved due to failure to comply with court ordered service.

Part 202 of the Uniform Rules for the New York State Trial Courts at § 202.7 provides in pertinent part as follows:

(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless they have been served and filed with the motion papers (1) a notice of motion and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has [*3]conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

(c) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place, and nature of the consultation and the issues discussed.

Johnson seeks restoration of the instant action for the sole purpose of dismissing the complaint as a sanction pursuant to CPLR § 3126. The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court (see CPLR § 3126 (3), Bates v. Baez, 299 AD2d 382 [2nd Dept. 2002]).

In support of the application and in accordance with Uniform Rules for Trial Courts [22 N.Y.C.R.R.] § 202.7(a)(2), Johnson has submitted an affirmation of the good faith efforts he made to resolve the disclosure issue covered by the instant motion. Johnson set forth all of the attempts made to schedule plaintiff's deposition which plaintiff either ignored or failed to show up for. Johnson also annexed the affirmation of plaintiff's counsel which plaintiff's counsel had previously submitted with an order to show cause seeking an order to be relieved as plaintiff's counsel. That affirmation avers that plaintiff did not cooperate with any disclosure obligations by making himself incommunicado to his own counsel. The fact that plaintiff has disappeared or made himself unavailable provides no basis for denying a motion to dismiss the complaint, particularly in the face of continued defaults of court ordered discovery (Foti v. Suero, 97 AD2d 748 [2nd Dept, 1983]).

The motion papers demonstrate that plaintiff did not comply with a preliminary conference order, a compliance conference order and an additional order of this court, dated October 13, 2008, which directed him to submit to an examination before trial, among other things. The October 13, 2008 order further directed that a note of issue be filed by April 13, 2009; that plaintiff's deposition occur by January 30, 2009 and that the failure to be deposed, if wilful, would result in the plaintiff being precluded from offering evidence at the time of trial.

The good faith affirmation and the affirmation of Johnson's counsel in support of the motion demonstrate that plaintiff's failure to comply was wilful and contumacious. Disobeying three consecutive orders directing the plaintiff to comply with discovery constitutes precisely the sort of dilatory and obstructive, and thus contumacious, conduct warranting the dismissal of the complaint (see Kutner v. Feiden, Dweck & Sladkus, 223 AD2d 488 [1st Dept., 1996]). The plaintiff repeatedly failed to comply with demands and requests for disclosure, ultimately resulting in the entry of a conditional order of preclusion. The plaintiff thereafter failed to comply with that order (see Mir v. Saad, 54 [*4]AD3d 914 [2nd Dept., 2008]).

Therefore, Johnsons' application to restore the action for the sole purpose of dismissing the complaint pursuant to CPLR § 3126 is granted.

The foregoing constitutes the decision and order of this court.

Enter——————————&# 151;———————————— X

J.S.C.

Enterforthwith————————— ———————————— 1;—X

J.S.C.