Pagones v. Maddox

• Decision Date: 29 April 1991
• Citation: 172 A.D.2d 809,569 N.Y.S.2d 180
• Parties: Steven A. PAGONES, Respondent, v. Alton H. MADDOX, Jr., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 180

569 N.Y.S.2d 180

172 A.D.2d 809

Steven A. PAGONES, Respondent, v. Alton H. MADDOX, Jr., et al., Appellants.

Supreme Court, Appellate Division Second Department.

April 29, 1991.

Alton H. Maddox, Jr., appellant pro se.

Gary Sinawski, New York City, for appellant Alfred C. Sharpton.

Boyd, Staton & Cave, Brooklyn (Gail W. Boyd, on the brief), for appellant C. Vernon Mason.

Pagones, Cross, Van Tuyl & Rizzo, P.C., Fishkill (Eugene J. Rizzo, of counsel; James P. Kelley, on the brief), for respondent.

Before BRACKEN, J.P., and BROWN, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for defamation, (1) the defendants Alton H. Maddox Jr., and Alfred C. Sharpton appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), entered June 28, 1989, as granted those branches of the plaintiff's motion which sought a conditional order of preclusion compelling them to comply with certain demands for disclosure and compelling them to respond to demands for bills of particulars, and (2) the defendant C. Vernon Mason (a) separately appeals, as limited by his brief, from so much of the same order as granted, without opposition, those branches of the plaintiff's motion which were for a conditional order of preclusion compelling him to comply with certain demands for disclosure and compelling him to respond to a demand for a bill of particulars, and (b) purportedly appeals from a second order of the same court, entered June 28, 1989, which also denied his motion for permission to serve an amended answer.

ORDERED that the defendant Mason's appeal from the order entered June 28, 1989, which granted the plaintiff a conditional order of preclusion is dismissed, without costs or disbursements, and without prejudice to an application to the Supreme Court, Dutchess County, for leave to vacate his default in opposing the plaintiff's motion; and it is further,

ORDERED that the purported appeal by the defendant Mason from the order entered June 28, 1989, which denied his motion for permission to serve an amended answer is dismissed, without costs or disbursements, for failure to serve and file a notice of appeal from that order; and it is further,

ORDERED that so much of the order entered June 28, 1989, as granted the plaintiff's motion for a conditional order of preclusion with respect to the defendants Maddox and Sharpton, is modified by vacating items numbered 12 and 13 in the plaintiff's demands for bills of particulars against each of them; as so modified, the order is affirmed, without costs or disbursements, and those defendants' time to comply with the demands for bills of particulars, the Demands for Information and Notices for Discovery and the expert witness demands is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.

The record reveals that the defendant Mason failed to submit papers in opposition to the plaintiff's motion for an order of preclusion and to compel disclosure. Mason's argument on appeal that the court should have considered his motion for leave to amend his answer as an objection to the demand for a bill of particulars served upon him is without merit. His appeal must be dismissed, as his remedy lies in a motion to vacate his default (see, Montalvo v. Key Inds., 98 A.D.2d 767, 469 N.Y.S.2d 482; cf., Glickman v. Sami, 149 A.D.2d 458, 540 N.Y.S.2d 714).

Turning to the merits, in December 1988 the plaintiff served on the defendants Maddox and Sharpton discovery demands under CPLR 3101 and a demand for bills of particulars concerning the particulars of their affirmative defenses. In April 1989 the plaintiff, alleging that he had not received a response to his demands, moved for an order of preclusion with respect to the demands for bills of particulars and to compel compliance with his discovery demands. Contrary to the contention of the defendants Maddox and Sharpton, the plaintiff's earlier motion pursuant...