[Download] "Andrew P. Mariani v. Philip R. Fleishman" by Supreme Court of New York " eBook PDF Kindle ePub Free

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eBook details

• Title: Andrew P. Mariani v. Philip R. Fleishman
• Author : Supreme Court of New York
• Release Date : January 23, 1990
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

DECISION & ORDER The plaintiffs' failure to respond to the defendants' demand for a bill of particulars and notice for
discovery and inspection prompted the defendants to move to preclude the plaintiffs from offering any evidence at trial on
the particulars not served. This unopposed motion was granted unless the plaintiffs responded to the demand and notice within
30 days of service of a copy of the order with notice of entry. Upon the plaintiffs' failure to meet this condition, the defendants
moved from summary judgment on the theory that the plaintiffs were now precluded from offering at trial most of the evidence
vital to their causes of action. In opposition to this motion, the plaintiffs submitted affidavits tending to establish that
they received neither the notice of motion to preclude no the conditional order of preclusion. Service of both by mail had
been established by affidavits of service. The court initially held the motion in abeyance and gave the plaintiffs 60 days
within which to submit an affidavit attesting to the merit of their causes of action. Upon the expiration of this period and
the court's refusal to grant the plaintiffs a further extension, summary judgment was awarded to the defendants. This appeal
ensued. In order to avoid the adverse impact of an order of preclusion, the interested party must establish both a reasonable excuse
for its default and a meritorious claim (White v Leonard, 140 A.D.2d 518; Dugan v Glass, 133 A.D.2d 97; Bailey v North Shore
Univ. Hosp., 91 A.D.2d 967, affd 59 N.Y.2d 748). While the plaintiffs have arguably established a reasonable excuse for their
default in answering the notice of motion to preclude and in failing to comply with the conditional order of preclusion, they
have not even attempted to establish the meritorious nature of their claims. Thus, the court did not improvidently exercise
its discretion in awarding the defendants summary judgment (see, Gass v Gass, 101 A.D.2d 849; Myoung Goo Lee v Moley, 97 A.D.2d
787).

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