Barriga v. Sapo

Appellate Division of the Supreme Court of New York

Barriga v. Sapo

250 A.D.2d 795, 673 N.Y.S.2d 211, 1998 N.Y. App. Div. LEXIS 6040

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 26, 1998

StatusPublished

Cited by10 cases

This text of 250 A.D.2d 795 (Barriga v. Sapo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barriga v. Sapo, 250 A.D.2d 795, 673 N.Y.S.2d 211, 1998 N.Y. App. Div. LEXIS 6040 (N.Y. Ct. App. 1998).

Pincite

Opinion

—In an action, inter alia, to recover damages for personal injuries, the defendants Freddy Barriga and Maria Flores appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated September 5, 1997, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the appellants’ motion is granted, and, upon searching the record (CPLR 3212 [b]), the separate motion by the defendants Anna Sapo and German Shapiro for summary judgment is granted, and the complaint is dismissed.

By order dated March 5, 1997, the Supreme Court granted a 60-day conditional order precluding the plaintiffs from offering any evidence at trial as to damages unless they provided responses to the defendants’ discovery demands. When the plaintiffs failed to timely respond, the defendants Freddy Barriga and Maria Flores and the defendants Anna Sapo and German Shapiro separately moved for summary judgment dismissing the complaint. Since the plaintiffs did not timely serve responses to the defendants’ discovery demands, the conditional order of preclusion became absolute (see, DiPietro v Duhl, 227 AD2d 515; Bock v Schiowitz, 168 AD2d 593). In order to be relieved of their default, the plaintiffs needed to demonstrate both a reasonable excuse for their failure to respond as well as a meritorious cause of action (see, DiPietro v Duhl, supra; Murdock v Center for Special Surgery, 199 AD2d 482). Having failed to do so, the plaintiffs were precluded from proving an essential element of their case. Accordingly, the Supreme Court should have granted the defendants’ respective motions for summary judgment (see, DiPietro v Duhl, supra; Bock v Schiowitz, supra). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.

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—In an action, inter alia, to recover damages for personal injuries, the defendants Freddy Barriga and Maria Flores appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated September 5, 1997, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the appellants’ motion is granted, and, upon searching the record (CPLR 3212 [b]), the separate motion by the defendants Anna Sapo and German Shapiro for summary judgment is granted, and the complaint is dismissed.

By order dated March 5, 1997, the Supreme Court granted a 60-day conditional order precluding the plaintiffs from offering any evidence at trial as to damages unless they provided responses to the defendants’ discovery demands. When the plaintiffs failed to timely respond, the defendants Freddy Barriga and Maria Flores and the defendants Anna Sapo and German Shapiro separately moved for summary judgment dismissing the complaint. Since the plaintiffs did not timely serve responses to the defendants’ discovery demands, the conditional order of preclusion became absolute (see, DiPietro v Duhl, 227 AD2d 515; Bock v Schiowitz, 168 AD2d 593). In order to be relieved of their default, the plaintiffs needed to demonstrate both a reasonable excuse for their failure to respond as well as a meritorious cause of action (see, DiPietro v Duhl, supra; Murdock v Center for Special Surgery, 199 AD2d 482). Having failed to do so, the plaintiffs were precluded from proving an essential element of their case. Accordingly, the Supreme Court should have granted the defendants’ respective motions for summary judgment (see, DiPietro v Duhl, supra; Bock v Schiowitz, supra). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.

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Bluebook (online)

250 A.D.2d 795, 673 N.Y.S.2d 211, 1998 N.Y. App. Div. LEXIS 6040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barriga-v-sapo-nyappdiv-1998.

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