Morrison v. First Empire Funding Corp.

175 A.D.2d 679

Opinion

— Order unanimously modified on the law and in the exercise of discretion and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court abused its discretion in requiring defendant to reimburse plaintiff for all future attorney’s fees and stenographic expenses as a condition of granting defendant’s cross motion to vacate the prior order of preclusion. The court has the ability to impose sanctions as a condition for vacating the default, but the sanctions imposed in this case are so open-ended and onerous that they will effectively deprive defendant of its ability to defend the action (see, Mairena v Charlemagne, 102 AD2d 814; Weinstein, Skoller & Kaye v Lynard Props., 79 AD2d 987; Montgomery Coal & Oil Co. v Fuss, 35 AD2d 817). Since an award of sanctions was appropriate in the circumstances of this case, we modify the court’s order to require defendant to pay plaintiff the sum of $1,000. (Appeals from Order of Supreme Court, Suffolk County, Hand, J. — Discovery.) Present — Callahan, J. P., Den-man, Green, Balio and Davis, JJ.