Baturov v. Marchewka

Appellate Division of the Supreme Court of New York

Baturov v. Marchewka

10 A.D.3d 345, 780 N.Y.S.2d 289, 2004 N.Y. App. Div. LEXIS 10130

Appellate Division of the Supreme Court of the State of New York·Decided August 2, 2004·Published·Cited by 4 cases

Opinion

In an action to recover damages for personal injuries, etc., the defendants System Van Lines, Inc., and Angelo Giustra appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated October 22, 2003, which granted the plaintiffs’ motion to strike their answer for failure to comply with a conditional order of preclusion dated June 9, 2003.

Ordered that the order is affirmed, with costs.

As a result of the appellants’ failure to timely provide the court-ordered discovery, the conditional order of preclusion dated June 9, 2003, became absolute (see Hall v Penas, 5 AD3d 549 [2004]; Marrone v Orson Holding Corp., 302 AD2d 371 [2003]). To be relieved of the adverse impact of the conditional order of preclusion, the appellants were required to demonstrate a reasonable excuse for their failure to comply with it and the existence of a meritorious defense (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Weitzenberg v Nassau County Dept, of Recreation & Parks, 282 AD2d 741 [2001]; Liotti v Ruk, 282 AD2d 717 [2001]). The appellants did neither. Accordingly, the plaintiffs’ motion to strike the appellants’ answer was properly [346] granted. Smith, J.P., S. Miller, Adams, Rivera and Lifson, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendants System Van Lines, Inc., and Angelo Giustra appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated October 22, 2003, which granted the plaintiffs’ motion to strike their answer for failure to comply with a conditional order of preclusion dated June 9, 2003.

Ordered that the order is affirmed, with costs.

As a result of the appellants’ failure to timely provide the court-ordered discovery, the conditional order of preclusion dated June 9, 2003, became absolute (see Hall v Penas, 5 AD3d 549 [2004]; Marrone v Orson Holding Corp., 302 AD2d 371 [2003]). To be relieved of the adverse impact of the conditional order of preclusion, the appellants were required to demonstrate a reasonable excuse for their failure to comply with it and the existence of a meritorious defense (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Weitzenberg v Nassau County Dept, of Recreation & Parks, 282 AD2d 741 [2001]; Liotti v Ruk, 282 AD2d 717 [2001]). The appellants did neither. Accordingly, the plaintiffs’ motion to strike the appellants’ answer was properly [346] granted. Smith, J.P., S. Miller, Adams, Rivera and Lifson, JJ., concur.

Baturov v. Marchewka, 10 A.D.3d 345, 780 N.Y.S.2d 289, 2004 N.Y. App. Div. LEXIS 10130 (N.Y. Ct. App. 2004).

Pincite

10 A.D.3d 345 (Baturov v. Marchewka) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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