Harris v. Evans

186 A.D.2d 454, 588 N.Y.S.2d 562, 1992 N.Y. App. Div. LEXIS 12047

Opinion

— Order, Supreme Court, New York County (Charles E. Ramos, J.), entered May 4, 1992, which, inter alia, conditionally granted the defendant’s motion for a final order of preclusion and summary judgment, dismissing the complaint, without prejudice, unless plaintiff paid to defense counsel the sum of $2,500.00 within ten days from service of a copy of the order with notice of entry, unanimously affirmed, with costs.

We find that the IAS Court did not abuse its discretion in conditionally granting the order of preclusion upon payment of a monetary sanction by plaintiff’s counsel where the plaintiff’s approximately three week delay in timely complying with the conditional order of preclusion was implicitly found by the court to be neither willful, deliberate or contumacious (see, Scanlon v Rhodes School, 76 AD2d 813; Grace v Grace, 74 AD2d 896). Concur — Sullivan, J. P., Milonas, Rosenberger, Ross and Asch, JJ.