Weitzenberg v. Nassau Co. Dept. Rec.

• Decision Date: 30 April 2001
• Citation: 724 N.Y.S.2d 357,282 AD2d 741
• Parties: (A.D. 2 Dept. 2001) Ira Weitzenberg, et al., appellants, v Nassau County Department of Recreation and Parks, et al., respondents. 2000-06119 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 357

724 N.Y.S.2d 357 (A.D. 2 Dept. 2001)

Ira Weitzenberg, et al., appellants, v Nassau County Department of Recreation and Parks, et al., respondents.

2000-06119

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

April 30, 2001

Louis D. Stober, Jr., LLC, Garden City, N.Y. (Stephen G. Walko of counsel), for appellants.

Alfred F. Samenga, County Attorney, Mineola, N.Y. (Snitow & Cunningham, LLP, New York, N.Y. [Charles D. Cunningham and Paul F. Millus] of counsel), for respondents.

In an action, inter alia, for reinstatement and back pay, the plaintiffs appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), dated May 25, 2000, which granted the defendants' motion to vacate their default in opposing the plaintiffs' motion to strike their answer for failure to comply with a conditional order of preclusion dated July 9, 1999.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

In July 1999 the Supreme Court issued a conditional order of preclusion striking the defendants' answer unless, within 90 days, they completely and fully complied with a notice for discovery and inspection served by the plaintiffs in February 1999. Upon the defendants' failure to comply with the conditional order of preclusion, the plaintiffs moved to strike their answer. The Supreme Court granted the motion without opposition. Thereafter, the defendants moved to vacate their default, and the Supreme Court granted the motion on condition that the defense counsel pay to the plaintiffs' counsel the sum of $1,000 for costs and an attorney's fee. We reverse.

Initially, we note that the defendants' failure to timely comply with the conditional order of preclusion rendered that order absolute (see, Kepple v Hill Assocs., 275 A.D.2d 299; Tae Chaol Ha v B.H.N.V. Realty Corp., 273 A.D.2d 458; Alphonse v UBJ Inc., 266 A.D.2d 171). "It is well settled that in order to be relieved of a failure in complying with a conditional order of preclusion, the moving party must demonstrate a reasonable excuse for its failure to comply and must show, in evidentiary form from a party with personal knowledge of the facts, that a meritorious cause of action or defense exists" (First Fed. Say. & Loan Assn. of Rochester v 1220 Richmond Rd. Corp., 123 A.D.2d 418, 419; see, Carter v Hi Top Flower Wholesale Corp., 255 A.D.2d 412). Moreover, because they defaulted on the plaintiffs' motion to strike their answer based on their failure to comply with the conditional order of preclusion, the defendants were required to demonstrate a reasonable excuse for that default...