Lerner v. Ayervais

Mar 7, 2005
Versions:16 A.D.3d 382
790 N.Y.S.2d 607
2005 N.Y. App. Div. LEXIS 2367

Sidney Lerner, as Executor of Sylvia Lerner, et al., Appellants, v Eleanor Ayervais, Respondent. [790 NYS2d 607]—In an action to recover damages for breach of an oral contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated October 22, 2002, which granted the defendant‘s motion to vacate an order of the same court dated April 16, 2002, which struck her answer and counterclaims.

Ordered that on the Court‘s own motion, Sidney Lerner, as executor of the estate of Sylvia Lerner, is substituted as an appellant in the place and stead of the deceased Sylvia Lerner, and the caption is amended accordingly; and it is further,

Ordered that the order is affirmed, with costs.

To avoid the adverse impact of a conditional order of preclusion, the defendant was required to demonstrate both a reasonable excuse for her failure to timely comply with the order requiring her to appear for a deposition and the existence of a meritorious defense (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Evans v County of Nassau, 240 AD2d 363 [1997]). The Supreme Court concluded that the defendant met this burden, and, under the circumstances of this case, we find no reason to disturb that determination (see Evans v County of Nassau, supra; Cherry v New York City Hous. Auth., 183 AD2d 693 [1992]).

The plaintiffs’ remaining contention is without merit. Florio, J.P., Krausman, Luciano and Rivera, JJ., concur.