Martin v. Salvage

238 A.D.2d 959, 661 N.Y.S.2d 557, 1997 N.Y. App. Div. LEXIS 4840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1997
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant Victor DeSimone dismissed. Memorandum: In August 1994 Victor DeSimone (defendant) served demands for a bill of particulars and various disclosure items. Plaintiff did not timely respond to those demands and, on June 20, 1995, a 30-day conditional order of preclusion was entered. Plaintiff failed to comply with that order and, on December 18, 1995, defendant moved for summary judgment dismissing the complaint against him. Supreme Court extended plaintiff’s time to respond to defendant’s demands and granted defendant’s motion "if plaintiff fails to serve responses by March 8, 1996.”

Supreme Court improvidently exercised its discretion in failing to grant defendant’s motion for summary judgment unconditionally (see, Johnson v Heavy Realty Corp., 191 AD2d 538; Becerril v Skate Way Roller Rink, 184 AD2d 365, 366). In order to be relieved of her default in complying with the conditional preclusion order, plaintiff was required to demonstrate a reasonable excuse for the default and to submit an affidavit of merit (see, Becerril v Skate Way Roller Rink, supra, at 366; Coakley v Gabel, 158 AD2d 954, 955, lv dismissed in part and denied in part 76 NY2d 931, rearg denied 76 NY2d 1018). The affidavit of plaintiff’s attorney submitted in opposition to defendant’s motion established neither a reasonable excuse nor a meritorious cause of action (see, DiPietro v Duhl, 227 AD2d 515), and "[pjlaintiff was not entitled to a second 'last chance’ to comply” (Becerril v Skate Way Roller Rink, supra, at 366). (Appeal from Order of Supreme Court, Erie County, Sconiers, J.—Summary Judgment.) Present—Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.