D'Angelo v. Downtown Athletic Club

244 A.D.2d 180, 664 N.Y.S.2d 914, 1997 N.Y. App. Div. LEXIS 11399

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about November 13, 1996, which vacated a preclusion order on condition that plaintiffs counsel pay $250 in costs to defendant-appellant, unanimously affirmed, without costs.

The court properly exercised its discretion in vacating the terms of the parties’ stipulated preclusion order in the interest of resolving the case on its merits. Defendant was not prejudiced by the one-month delay, plaintiffs excuse was reasonable, and the verified complaint and bill of particulars sufficed, under the circumstances, to demonstrate the merits of the action (Shrader v Monforte, 212 AD2d 874; Schoffel v Velez, 118 AD2d 492).

We have reviewed defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Rosenberger, Ellerin, Rubin and Tom, JJ.