M. Fabrikant & Sons, Inc. v. Overton & Co. Customs Brokers, Inc.

182 A.D.2d 570 | N.Y. App. Div. | 1992

Order, Supreme Court, New York County (Carol E. Huff, J.), entered November 13, 1990, which denied defendant-appellant’s motion to vacate a default, unanimously modified, on the law and the facts, to deny the motion on the ground that it is academic, and otherwise affirmed, without costs.

Upon defendant’s default on a motion to preclude for failure to comply with discovery demands, a conditional order of preclusion was granted allowing defendant an additional 45 days to comply with the outstanding demands. Unaware that a conditional order had been granted, defendant moved to vacate its default while simultaneously providing its discovery responses. The IAS court denied the notice to vacate the default, finding an insufficient showing of an excusable default or a meritorious defense.

Whether or not defendant made a showing sufficient to vacate its default, it clearly complied with the prior, conditional order by serving the discovery items with its moving papers thereby rendering academic the whole issue of the default. As there appears to be some confusion on this point, we modify so as to reflect that the discovery had been provided and that no sanction of any kind is warranted. Concur— Murphy, P. J., Ellerin, Wallach, Asch and Rubin, JJ.