Avellanet v. R-JO Trucking Corp.

237 A.D.2d 193, 655 N.Y.S.2d 368, 1997 N.Y. App. Div. LEXIS 2701

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1997
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 4, 1996, which granted defendant-respondent’s motion to modify a prior order, entered on default, conditionally striking respondent’s answer unless it served a bill of particulars and responses to plaintiff’s discovery demands within 30 days after service of the order with notice of entry, to the extent of deeming the bill of particulars and discovery responses that respondent served in response to such conditional order to have been timely, upon condition that respondent pay to plaintiff’s attorneys $250, unanimously affirmed, without costs.

Although the conditional order was served on respondent’s attorney, such service was without notice of entry, and thus the 30-day limitation never began to run (cf., O’Brien v City of New York, 6 AD2d 63), and it cannot be said that respondent was in default of that order. Respondent’s motion to "amend” the conditional order was really nothing more than an effort to inform the motion court of the reasons for the two or three-month delay in complying therewith. We see no reason to disturb the court’s finding of "substantial” compliance and exercise of discretion in favor of determining the matter on the merits, on the condition that plaintiffs attorneys be compensated in the amount of $250 (see, Damselle, Ltd. v 500-512 Seventh Ave. Assocs., 184 AD2d 367). Concur—Rosenberger, J. P., Wallach, Williams and Andrias, JJ.