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Gary Gatti, Appellant v. Vincent Rago

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 17, 2012

GARY GATTI, APPELLANT,
v.
VINCENT RAGO, RESPONDENT.

Appeal from an order of the District Court of Suffolk County, Second District (C. Stephen Hackeling, J.), entered May 21, 2010.

Gatti v Rago

Decided on January 17, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order denied plaintiff's motion to deem defendant in default and to set the matter down for an inquest.

ORDERED that the order is reversed, without costs, and plaintiff's motion is granted.

In this action to enforce the terms of a stipulation of settlement, plaintiff served interrogatories upon defendant. When defendant failed to respond to the interrogatories, plaintiff moved, pursuant to CPLR 3126, to strike defendant's answer. The District Court issued a conditional order striking defendant's answer unless defendant responded to plaintiff's interrogatories within 30 days of the mailing of the order. After the expiration of the 30-day period, plaintiff moved to deem defendant in default and to set the matter down for an inquest on the ground that defendant had failed to comply with the order directing him to comply with plaintiff's discovery demands. In opposition to the motion, defendant failed to provide any excuse for his failure to respond to plaintiff's discovery demands in accordance with the court's order. Nevertheless, the District Court denied plaintiff's motion.

A conditional order of preclusion becomes absolute upon a party's failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion involved herein, defendant was required to demonstrate a reasonable excuse for his failure to timely comply with the order and the existence of a meritorious defense (see Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Defendant failed to meet this burden. As the preclusion order became absolute, defendant is unable to offer any of its defenses at trial in this action. Thus, the District Court improvidently exercised its discretion in denying plaintiff's motion.

Accordingly, the order is reversed, and plaintiff's motion to deem defendant in default and to set the matter down for an inquest is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur. Decision

Date: January 17, 2012

20120117

© 1992-2012 VersusLaw Inc.



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