In this action to recover damages for injuries sustained after the plaintiff was struck by a pallet being dragged by a forklift in a Brooklyn supermarket, the Appellate Division, Second Department, in accordance with Horn Appellate Group’s arguments on appeal, reversed both an order of absolute preclusion against the plaintiff and a subsequent order awarding summary judgment to the defendant. The appellate court agreed that: [i] a prior discovery order was not a conditional order of preclusion; [ii] the defendant’s counsel failed to provide an affirmation of good-faith efforts to resolve the discovery dispute; and [iii] the defendant failed to make a clear showing of any willful and contumacious discovery failure by the plaintiff. The court further agreed that upon reversal of the preclusion order, the defendant’s motion for summary judgment must be denied.
