Atlas Door Corp. v. Barline Contracting Crane Service, Inc.

199 A.D.2d 449, 604 N.Y.S.2d 117, 1993 N.Y. App. Div. LEXIS 12239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1993
• Status: Published

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Santucci, J.), dated May 7, 1991, which granted the defendant’s motion, in effect, to vacate its default in complying with an order of the same court, dated November 14, 1990, and denied its motion to strike the defendant’s answer and counterclaim.

Ordered that the order is affirmed, with costs.

On November 14, 1990, the court issued an order directing the defendant to comply with the plaintiff’s discovery demands. Thereafter, upon the defendant’s failure to comply with said demands, the plaintiff moved to strike the defendant’s answer and counterclaim pursuant to CPLR 3126. The court issued a decision granting the motion upon the defendant’s default. However, the defendant subsequently moved for reconsideration of the court’s decision. By order dated May 7, 1991, the court granted the defendant’s motion and, upon doing so, denied the plaintiff’s motion to strike.

We agree with the plaintiff’s contention that the defendant’s motion was, in effect, a motion to vacate its default in complying with the court’s order dated November 14, 1990 (see,

Duque v Ortiz, 154 AD2d 333). However, contrary to the plaintiffs contentions, the court did not err in granting the motion and in denying the plaintiff’s motion to strike the defendant’s answer and counterclaim. The defendant offered a reasonable excuse for its default and made an adequate showing of the merits of its defense (see, Elliot v New York City Hous. Auth., 187 AD2d 410; cf., Duque v Ortiz, 154 AD2d 333, supra). Also, we note that the defendant attached to its motion its responses to the plaintiff’s discovery demands (see, Chaisson v North Shore Univ. Hosp., 188 AD2d 632).

We have reviewed the plaintiff’s remaining contention and find it to be without merit. Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.