Seven Acre Wood Street Associates, Inc. v. Petruccelli Engineering

3 A.D.3d 396, 769 N.Y.S.2d 902, 2004 N.Y. App. Div. LEXIS 331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about July 3, 2002, which, inter alia, granted plaintiffs cross motion to vacate a self-executing order of preclusion against it on the condition that plaintiff’s counsel pay defendants’ counsel $1,500, unanimously affirmed, without costs.

Inasmuch as plaintiff demonstrated a meritorious cause of action and a reasonable excuse for its default in timely complying with the discovery directives in the subject order of preclusion, plaintiffs cross motion to vacate the self-executing preclusion order was properly granted (see CPLR 5015 [a] [1]; Fernandez v Tsoumpas Bros. Co., 140 AD2d 257 [1988]; cf. Clarke v United Parcel Serv., 300 AD2d 614 [2002]; Tejeda v 750 Gerard Props. Corp., 272 AD2d 124 [2000]). Plaintiffs default was not willful and its submission of its responses to defendants’ discovery demands, albeit after an 18-day delay, demonstrated its good faith intent to prosecute the action. Any prejudice to defendants by reason of plaintiffs late compliance was adequately addressed by the court’s provision conditioning the grant of plaintiff’s cross motion upon payment of $1,500 to defendants’ counsel (see Heffney v Brookdale Hosp. Ctr., 102 AD2d 842 [1984], appeal dismissed 63 NY2d 770 [1984]; Maglieri v Saks, 33 AD2d 898 [1970]). Concur—Tom, J.P., Williams, Marlow and Gonzalez, JJ.