Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 19, 2009. The order, insofar as appealed from, conditioned the granting of defendant's motion to deem the complaint dismissed pursuant to a prior conditional order of preclusion upon specified terms.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion to deem the complaint dismissed is granted unconditionally.

Plaintiff commenced this action to recover damages for loss of personal property. By order dated April 2, 2009, the Civil Court directed plaintiff to respond to defendant's discovery demands within 60 days, and, if he failed to respond, the complaint "shall be dismissed." When plaintiff did not respond to the demands, defendant moved for an order deeming the complaint dismissed. Plaintiff failed to oppose the motion. By order entered June 19, 2009, the Civil Court conditionally granted the motion.

Since plaintiff failed to respond to defendant's discovery demands as required by the April 2, 2009 order, this order became absolute (see Callaghan v Curtis, 48 AD3d 501 [2008]; Garcia v City of New York, 5 AD3d 725 [2004]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate, among other things, an excusable default (see Callaghan, 48 AD3d at 501). As plaintiff failed to oppose defendant's motion, the motion should have been granted unconditionally.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 2010