CPLR R. 3212 Effect of Preclusion Order

Supreme Court did not abuse its discretion in enforcing the order of
preclusion. "[T]he conditional order was self-executing and
[defendant]'s failure to produce [requested] items on or before the
date certain rendered it absolute" (Wilson v Galicia Contr. & Restoration Corp.,
10 NY3d 827, 830 [2008] [internal quotation marks and citations
omitted]). Defendant's overall pattern of noncompliance, both in
response to plaintiff's repeated demands for the requested disclosure
and following the issuance of the stipulated conditional order of
preclusion, gives rise to an inference that her conduct was willful and
contumacious (see Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618 [2006]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]; Tleige v Troy Pediatrics,
237 AD2d 772, 773-774 [1997]). Notably, defendant stipulated to the
consequences of her conduct and proffered no adequate excuse for her
noncompliance (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660,
660-661 [2004]). Under these circumstances, we cannot conclude that
Supreme Court improvidently exercised its discretion in ordering the
preclusion of defendant's evidence.

Nor do we find error in Supreme Court's award of summary
judgment in favor of plaintiff and dismissal of defendant's
counterclaim. Plaintiff made a prima facie showing of entitlement to
judgment for the unpaid balance of the work performed by producing,
among other things, work estimates signed by the parties, billing
statements, and evidence demonstrating that the agreed-upon work was
performed and that a portion of the work went unpaid. Defendant, unable
to offer any admissible evidence as a consequence of the order of
preclusion, failed to raise an issue of fact sufficient to withstand
summary judgment (see CPLR 3212 [b]; Zuckerman v New York,
49 NY2d 557, 562 [1980]). Similarly, in the absence of any competent
proof to support her counterclaim, it was also properly dismissed by
Supreme Court.