Ciao Europa, Inc. v. Silver Autumn Hotel Corp.

270 A.D.2d 2, 704 N.Y.S.2d 809, 2000 N.Y. App. Div. LEXIS 2232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 20, 1999, denying plaintiffs motion to vacate an order, same court and Justice, entered January 28, 1999, which, upon plaintiffs default, struck plaintiffs pleadings and vacated the preliminary injunction previously granted plaintiff, unanimously affirmed, without costs. Appeal from the aforesaid order, entered January 28, 1999, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiffs motion to vacate the order entered on its default, striking its complaint and answer to defendant’s counterclaims, was properly denied since plaintiff failed to demonstrate a meritorious defense to the counterclaim and a reasonable excuse for its default (see, John v City of New York, 260 AD2d 187). In view of plaintiffs willful and systematic failure to provide discovery or to respond to defendant’s motions, its proffered excuse of law office failure is insufficient (see, Wynne v Wagner, 262 AD2d 556, lv dismissed 94 NY2d 796). Indeed, were the January 28, 1999 default order striking the complaint reviewable, we would find the extreme sanction of dismissal to have been a proper exercise of discretion, where the record reveals that plaintiff repeatedly and systematically failed to comply with court-ordered discovery (see, Zletz v Wetanson, 67 NY2d 711; Kutner v Feiden, Dweck & Sladkus, 223 AD2d 488, lv denied 88 NY2d 802; Stanfill Plumbing & Heating Corp. v Dravo Constructors, 216 AD2d 101). Concur — Sullivan, P. J., Rosenberger, Mazzarelli and Andrias, JJ.