Schicchi v. J.A. Green Const. Corp.

• Decision Date: 05 March 1984
• Citation: 100 A.D.2d 509,472 N.Y.S.2d 718
• Parties: Stephen SCHICCHI, Appellant, v. J.A. GREEN CONSTRUCTION CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 718

472 N.Y.S.2d 718

100 A.D.2d 509

Stephen SCHICCHI, Appellant, v. J.A. GREEN CONSTRUCTION CORP., Respondent.

Supreme Court, Appellate Division Second Department.

March 5, 1984.

Fred R. Profeta, Jr., New York City, for appellant.

A. Paul Goldblum, Brooklyn, for respondent.

Before MOLLEN, P.J., and WEINSTEIN, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated February 9, 1982, granting defendant's motion for summary judgment dismissing plaintiff's complaint and denying plaintiff's motion to vacate an order of preclusion; (2) as limited by his brief, from so much of an order of the same court, dated March 15, 1982, as upon reargument, adhered to its original determination; (3) from a decision of the same court, dated June 11, 1982, which stated that plaintiff's motion for a default judgment based upon defendant's failure to answer his second complaint should be denied and the complaint dismissed; and (4) from an order of the same court, dated July 16, 1982, entered on that decision.

Appeal from the order dated February 9, 1982 dismissed. That order was superseded by the order dated March 15, 1982, made upon reargument.

Appeal from the decision dismissed. No appeal lies from a decision.

Order dated July 16, 1982 affirmed and order dated March 15, 1982 affirmed insofar as appealed from.

Defendant is awarded one bill of costs.

This action was initially commenced in July, 1979 to recover for personal injuries allegedly sustained when plaintiff fell on a walkway owned and maintained by defendant. Defendant answered on or about August 6, 1979, and also demanded a verified bill of particulars at that time. Plaintiff failed to comply with the demand. By notice of motion dated February 23, 1981, defendant sought an order precluding plaintiff from introducing at trial any evidence concerning the subject of defendant's demand. The motion was conditionally granted with plaintiff being afforded an additional opportunity to comply. This period was further extended by stipulation of the parties. After the expiration of the period agreed to, defendant moved for summary judgment dismissing the complaint based upon the conditional order of preclusion. Plaintiff, on the other hand, moved to vacate the preclusion order.

By order dated February 9, 1982, Special Term denied plaintiff's application to vacate the order of preclusion and, instead, granted defendant's motion for summary judgment in favor of defendant. Thereafter, plaintiff's motion for leave to reargue was granted but the court adhered to its original determination.

While plaintiff's motion to vacate the preclusion order was still pending, plaintiff had caused to be served upon defendant, on or about December 23, 1981, a second summons and complaint which were identical to the originals. Defendant's answer was not served until January 26, 1982. It asserted, as affirmative defenses, res judicata and collateral estoppel. By notice of motion dated February 3, 1982, plaintiff moved for the entry of a default judgment based upon defendant's failure to timely answer the second complaint. Special Term denied said motion and dismissed plaintiff's second complaint based upon the order of preclusion, which, the court held, was still viable. In our view, this conclusion was entirely proper inasmuch as the two complaints served by plaintiff were identical. Thus, the order granting summary judgment in the prior action constituted "a [determination] on the merits of the plaintiff['s] claims, and is therefore entitled to res judicata effect" in order to prevent plaintiff from circumventing the preclusion decree (see Barrett v. Kasco Constr. Co., 84 A.D.2d 555, 556, 443 N.Y.S.2d 417, affd. 56 N.Y.2d 830, 452 N.Y.S.2d 566, 438 N.E.2d 99; Strange v. Montefiore Hosp. & Med. Center, 59 N.Y.2d 737, 463 N.Y.S.2d 429, 450 N.E.2d 235; Cebron v. McBride Dev. Corp., 93 A.D.2d 876, 461 N.Y.S.2d 428).

It is well settled that a party seeking to avoid the enforcement of a preclusion order must exhibit a reasonable excuse for the failure to comply with its terms (Hargett v. Health & Hosps. Corp. of City of N.Y., 88 A.D.2d 633, 450 N.Y.S.2d 235; Raphael v. Cohen, 87...