Geliga v. Karibian, Inc.

Feb 23, 2010
Versions:70 A.D.3d 996
893 N.Y.S.2d 897

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated April 17, 2009, as denied that branch of their motion which was to vacate a prior order of the same court dated December 19, 2007, precluding the defendant David Cruz from testifying at trial unless he appeared for an examination before trial on or before March 19, 2008.

Ordered that the order is affirmed insofar as appealed from, with costs.

To avoid the adverse impact of the conditional order of preclusion, the defendants were required to demonstrate an excusable default and a meritorious defense to the action (see Lee v Arellano, 18 AD3d 620, 621 [2005]; Jenkinson v Naccarato, 286 AD2d 420, 421 [2001]; Felicciardi v Town of Brookhaven, 205 AD2d 495, 496 [1994]). Since the defendants failed to demonstrate an excusable default, that branch of their motion which was to vacate the order of preclusion was properly denied.

Fisher, J.P., Santucci, Angiolillo, Hall and Lott, JJ., concur.