Correa v. Tscherne

• Decision Date: 15 July 2002
• Citation: 296 A.D.2d 476,745 N.Y.S.2d 471
• Parties: JOSE CORREA, Respondent,<BR>v.<BR>HENRY TSCHERNE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

296 A.D.2d 476

745 N.Y.S.2d 471

JOSE CORREA, Respondent,

v.HENRY TSCHERNE et al., Appellants.

Decided July 15, 2002.

O'Brien, J.P., Krausman, Schmidt and Cozier, JJ., concur.

Ordered that the order is affirmed, with costs.

The Supreme Court issued a conditional order of preclusion on August 28, 2000, granting the plaintiff's motion to strike the defendants' answer unless the defendants complied with certain discovery demands. The defendants did not submit any papers in opposition to the motion. In moving to vacate their default four months later, the defendants were required to demonstrate a reasonable excuse for their failure to oppose the motion and a meritorious defense (see Weitzenberg v Nassau County Dept. of Recreation & Parks, 282 AD2d 741; Roussodimou v Zafiriadis, 238 AD2d 568). The Supreme Court properly denied the motion, as the defendants failed to demonstrate a reasonable excuse for their default (see Scoca v Bon Realty Corp., 284 AD2d 388).

Furthermore, the Supreme Court properly granted the plaintiff's cross motion to strike the defendants' answer. As a result of the defendants' failure to fully comply with the conditional order of preclusion, that conditional order became absolute (see Jenkinson v Naccarato, 286 AD2d 420; Weitzenberg v Nassau County Dept. of Recreation & Parks, supra). The defendants failed to meet their burden of demonstrating a reasonable excuse for their failure to comply (see Weitzenberg v Nassau County Dept. of Recreation & Parks, supra; First Fed. Sav. & Loan Assn. of Rochester v 1220 Richmond Rd. Corp., 123 AD2d 418).