Reilly v. Oakwood Heights Community Church

—In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated June 23, 1999, which, upon their failure to comply with a prior order of the same court, dated October 28, 1998, inter alia, granting the defendant’s motion to dismiss the complaint unless they provided additional discovery within 60 days, directed the clerk to enter a judgment dismissing the complaint.

Ordered that on the Court’s own motion, the plaintiffs’ notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in directing the clerk to enter judgment dismissing the complaint, as the plaintiffs’ failure to comply with a prior order was willful, deliberate, and contumacious (see, Parish Constr. Corp. v Franlo Tile, 215 AD2d 545). Thompson, J. P., Sullivan, Krausman and Smith, JJ., concur.