Goncalves v. Stuyvesant Development Associates

• Decision Date: 22 October 1996
• Citation: 232 A.D.2d 275,648 N.Y.S.2d 441
• Parties: Leonel GONCALVES, et al., Plaintiffs-Respondents, v. STUYVESANT DEVELOPMENT ASSOCIATES, Defendant-Appellant, and Union Square 14th Street Associates, et al., Defendants. STUYVESANT DEVELOPMENT ASSOCIATES, Third-Party Plaintiff-Appellant, v. LUNA CARPENTRY, INC., Third-Party Defendant-Respondent,
• Court: New York Supreme Court — Appellate Division

Page 441

648 N.Y.S.2d 441

232 A.D.2d 275

Leonel GONCALVES, et al., Plaintiffs-Respondents, v. STUYVESANT DEVELOPMENT ASSOCIATES, Defendant-Appellant, and Union Square 14th Street Associates, et al., Defendants.

STUYVESANT DEVELOPMENT ASSOCIATES, Third-Party Plaintiff-Appellant, v. LUNA CARPENTRY, INC., Third-Party Defendant-Respondent,

Supreme Court, Appellate Division, First Department.

Oct. 22, 1996.

Abraham S. Altheim, for Third-Party Plaintiff-Appellant.

Leonardo D'Alessandro, for Third-Party Defendant-Respondent.

Before ROSENBERGER, J.P., and KUPFERMAN, NARDELLI, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about August 15, 1995, which, inter alia, based upon a prior preclusion order, granted third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

This Court's preference for disposing of cases on the merits does not relieve a party seeking to vacate a default of the two-pronged burden of showing a meritorious claim or defense and a reasonable excuse for the default (Dimitratos v. City of New York, 180 A.D.2d 414, 579 N.Y.S.2d 83). Here, the only excuse offered for third-party plaintiff's failure to respond to disclosure demands was a change of personnel in the office of its attorneys, and no excuse at all was given for the failure to respond to the motion to preclude. Nor did the hearsay affidavit of third-party plaintiff's attorney show a meritorious third-party claim (see, James v. Hoffman, 158 A.D.2d 398, 551 N.Y.S.2d 519).