NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 15, 2009
ARMIN A. MEIZLIK CO. INC., ETC., ET AL., PLAINTIFFS-RESPONDENTS,
L & K JEWELRY INC., ET AL., DEFENDANTS-APPELLANTS. [AND A THIRD-PARTY ACTION]
Appeal from order, Supreme Court, New York County (Bernard J. Fried, J.), entered May 23, 2008, which, upon defendants' default, granted plaintiffs' motion pursuant to CPLR 3126 to strike defendants' answer, unanimously dismissed, without costs, as taken from a non-appealable order. Order, same court and Justice, entered September 11, 2008, which denied defendants' motion to vacate the May 23 order, unanimously reversed, on the facts, with costs, the May 23 order vacated, and plaintiffs' motion to strike defendants' answer denied.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Moskowitz, DeGrasse, Manzanet-Daniels, Roman, JJ.
The May 23 order granting plaintiff's CPLR 3126 motion was one entered on default within the meaning of CPLR 5511 and is non-appealable (see Fox v T.B.S.D., Inc., 278 AD2d 612, 613-614 , lv denied 96 NY2d 716 ; Benitez v Olson, 29 AD3d 503 ; see also Figiel v Met Food, 48 AD3d 330 ).
Defendants' motion to vacate the May 23 order sufficiently showed a meritorious defense, namely, that the diamonds sold or consigned to defendants had been stolen, and a reasonable excuse for the failure to prepare timely written opposition to the CPLR 3126 motion, namely, that the individual defendant's serious illness, the unavailability of defendants' original attorney due to foreign travel until a few days before the return date, and the recent retention of co-counsel made it difficult for the attorneys to coordinate with defendants during the seven-day period between the signing of the order to show cause that brought on the motion and its return date. The record also shows that at oral argument of the CPLR 3126 motion, co-counsel was prepared to immediately produce documents purportedly responsive to defendants' demands, which documents were attached to defendants' motion to vacate. The evidence of the individual defendant's illness shows that she has been unable to participate in the litigation, and warrants denial of plaintiffs' motion to strike (see Grabow v Blue Eyes, 123 AD2d 155 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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