Melo v. Pagano

284 A.D.2d 436, 726 N.Y.S.2d 862, 2001 N.Y. App. Div. LEXIS 6292

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 2001
• Status: Published

Opinions

—In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated March 17, 2000, which, in effect, upon granting the plaintiffs cross motion, inter alia, to vacate her default in opposing his prior motion to preclude her from offering evidence at trial, denied his motion for summary judgment dismissing the complaint based on the plaintiffs failure to comply with a conditional order of preclusion of the same court dated February 16, 1999, and vacated the conditional order of preclusion.

Ordered that the order is affirmed, without costs or disbursements.

By order dated February 16, 1999, the Supreme Court, Queens County, issued an order precluding the plaintiff from offering evidence at trial unless she responded to the defendant’s discovery demands within a certain time. Upon the plaintiffs failure to comply with the conditional order of preclusion, the defendant moved for summary judgment dismissing the complaint. In response, the plaintiff cross-moved, inter alia, to vacate her default in opposing the motion to preclude. The Supreme Court denied the motion for summary judgment and, in effect, granted the plaintiff’s cross motion. We affirm.

The Supreme Court properly granted the plaintiffs cross motion, inter alia, to vacate her default in opposing the defendant’s motion to preclude, as she demonstrated a reasonable excuse for her default and a meritorious cause of action (see, Burns v Casale, 276 AD2d 734; Parker v City of New York, 272 AD2d 310). Further, as the Supreme Court, in effect, vacated the plaintiffs default and denied the defendant’s motion to preclude, the plaintiff was no longer required to comply with the conditional order of preclusion, or explain why she had not done so. Thus, the defendant was not entitled to summary judgment based on the plaintiffs failure to comply. O’Brien, J. P., Friedmann and Cozier, JJ., concur.