Lerner v. Ayervais

Appellate Division of the Supreme Court of New York

Lerner v. Ayervais

16 A.D.3d 382, 790 N.Y.S.2d 607, 2005 N.Y. App. Div. LEXIS 2367

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 7, 2005

StatusPublished

Cited by4 cases

This text of 16 A.D.3d 382 (Lerner v. Ayervais) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lerner v. Ayervais, 16 A.D.3d 382, 790 N.Y.S.2d 607, 2005 N.Y. App. Div. LEXIS 2367 (N.Y. Ct. App. 2005).

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Opinion

— In an action to recover damages for breach of an oral contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated October 22, 2002, which granted the defendant’s motion to vacate an order of the same court dated April 16, 2002, which struck her answer and counterclaims.

Ordered that on the Court’s own motion, Sidney Lerner, as executor of the estate of Sylvia Lerner, is substituted as an appellant in the place and stead of the deceased Sylvia Lerner, and the caption is amended accordingly; and it is further,

Ordered that the order is affirmed, with costs.

To avoid the adverse impact of a conditional order of preclusion, the defendant was required to demonstrate both a reasonable excuse for her failure to timely comply with the order requiring her to appear for a deposition and the existence of a meritorious defense (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Evans v County of Nassau, 240 AD2d 363 [1997]). The Supreme Court concluded that the defendant met this burden, and, under the circumstances of this case, we find no reason to disturb that determination (see Evans v County of Nassau, supra; Cherry v New York City Hous. Auth., 183 AD2d 693 [1992]).

The plaintiffs’ remaining contention is without merit. Florio, J.P., Krausman, Luciano and Rivera, JJ., concur.

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— In an action to recover damages for breach of an oral contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated October 22, 2002, which granted the defendant’s motion to vacate an order of the same court dated April 16, 2002, which struck her answer and counterclaims.

Ordered that on the Court’s own motion, Sidney Lerner, as executor of the estate of Sylvia Lerner, is substituted as an appellant in the place and stead of the deceased Sylvia Lerner, and the caption is amended accordingly; and it is further,

Ordered that the order is affirmed, with costs.

To avoid the adverse impact of a conditional order of preclusion, the defendant was required to demonstrate both a reasonable excuse for her failure to timely comply with the order requiring her to appear for a deposition and the existence of a meritorious defense (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Evans v County of Nassau, 240 AD2d 363 [1997]). The Supreme Court concluded that the defendant met this burden, and, under the circumstances of this case, we find no reason to disturb that determination (see Evans v County of Nassau, supra; Cherry v New York City Hous. Auth., 183 AD2d 693 [1992]).

The plaintiffs’ remaining contention is without merit. Florio, J.P., Krausman, Luciano and Rivera, JJ., concur.

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Bluebook (online)

16 A.D.3d 382, 790 N.Y.S.2d 607, 2005 N.Y. App. Div. LEXIS 2367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerner-v-ayervais-nyappdiv-2005.

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