WESTCHESTER MEDICAL CENTER, plf-res, v. JAMES AMOROSO, def-ap

10873N. WESTCHESTER MEDICAL CENTER, plf-res, v. JAMES AMOROSO, def-ap — Ian Anderson, Kew Gardens, for ap — The Stuttman Law Group, P.C., White Plains (Dennis D. Murphy of counsel), for res — Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered August 29, 2012, which, to the extent appealed from, denied defendant’s motion for an order of preclusion and summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action seeking payment for medical services provided by plaintiff hospital, defendant’s preclusion motion was properly adjudicated (see Rule 202.8[f] of the Uniform Rules of the New York State Trial Courts). Contrary to defendant’s argument, there is no evidence that the proper procedure for resolving the pre-preliminary conference discovery motion was not followed or that the motion court was not thoroughly familiar with the content of the filed motion prior to signing the order challenged on appeal. Although defendant alleges that plaintiff failed to respond to a demand for a bill of particulars over a 2 year period of time, no preliminary conference order existed and no further demands or motions seeking plaintiff’s compliance with the lone discovery request were brought or made. Additionally, no conditional orders pertaining to discovery compliance were sought by defendant. Thus, defendant failed to establish a pattern of willful noncompliance with discovery and the drastic penalty of an order of preclusion is not warranted (see Cherokee Owners Corp. v. DNA Contr. LLC, 74 AD3d 411 [1st Dept 2010]; Ripka Rotter & King, LLP v. Kahn Gordon Timko & Rodriguez, P.C., 83 AD3d 613 [1st Dept 2011]; Palmenta v. Columbia Univ., 266 AD2d 90 [1st Dept 1999]).