Rosario v. Guthrie

234 A.D.2d 3, 650 N.Y.S.2d 550, 1996 N.Y. App. Div. LEXIS 12267

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered November 3, 1995, which, inter alia, granted plaintiff’s motion to vacate the dismissal of his complaint which had been granted for failure to comply with court ordered discovery, and order of the same court and Justice, entered on or about May 8, 1996, which, inter alia, denied the third-party defendant’s motion to vacate the November 3, 1995 order, unanimously affirmed, without costs.

The orders were appropriate exercises of discretion. Third-party defendant did not demonstrate prejudice (see, Forte v Cities Serv. Oil Co., 195 AD2d 805, 807), plaintiff’s delay in providing discovery was minimal and not willful, and plaintiff offered a reasonable excuse for the default and evidence of a meritorious action. Concur—Murphy, P. J., Sullivan, Ellerin, Nardelli and Mazzarelli, JJ.