Jonard Industries Corp. v. Jerico Precision Manufacturing Corp.

87 A.D.2d 810, 448 N.Y.S.2d 779, 1982 N.Y. App. Div. LEXIS 16260

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1982
• Status: Published

Opinion

In an action seeking, inter alia, money damages and equitable relief arising from the theft of trade secrets, defendants appeal from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), entered October 8, 1981, as imposed conditions on the granting of their motion (1) to dismiss the complaint for plaintiff’s willful failure to appear for a court-ordered examination before trial, (2) for a final order of preclusion based upon plaintiff’s failure to comply with a conditional order of preclusion entered May 29, 1980, (3) for summary judgment upon the complaint based upon such final order of preclusion, and (4) for a default judgment upon a counterclaim asserted in April, 1980. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted unconditionally. Plaintiff failed to appear for an examination before trial after the court so ordered and to comply with a conditional order of preclusion. Further, plaintiff failed to offer a valid excuse for its apparently deliberate default. Additionally, plaintiff did not reply to the counterclaim. In the absence of a showing of merit and a reasonable excuse for the default and delay, it was error for Special Term to impose conditions upon the grant of defendants’ motion (see CPLR 3126; Barasch v Micucci, 49 NY2d 594; Cinelli v Radcliffe, 35 AD2d 829). Weinstein, J. P., Thompson, Bracken and Brown, JJ., concur.