Kumar v Yonkers Contr. Co., Inc.

2005 NY Slip Op 00133

Decided on January 10, 2005

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2005
APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT
A. GAIL PRUDENTI, P.J.
DAVID S. RITTER
STEVEN W. FISHER
ROBERT A. LIFSON, JJ.
2003-04036






Peter J. Kelley & Associates, New York, N.Y. (Mark Bastian of
counsel), for appellants.
Fabiani & Cohen, LLP, New York, N.Y. (Lisa A. Sokoloff of
counsel), for respondent Yonkers
Contracting Company, Inc.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York,
N.Y. (Eugene T. Boulé and Alexander
Mueller of counsel), for respondent
Rice Mohawk U.S. Construction Co.,
Ltd.
London Fischer, LLP, New York, N.Y. (Patrick J. McCreesh
and Stephenie Lannigan Bross of
counsel), for respondents Grace Industries,
Inc., and El Sol Contracting &
Construction Corporation, d/b/a Grace
Industries, Inc./El Sol Contracting &
Construction Corporation, a joint venture.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), dated March 26, 2003, as, upon renewal and reargument, adhered to a prior determination of the same court dated November 15, 2002, denying their motion to vacate an order of the same court dated June 5, 2002, which granted the unopposed motions of the defendants Grace Industries, Inc., El Sol Contracting & Construction Corporation, d/b/a Grace Industries, Inc./El Sol Contracting & Construction Corporation, a joint venture, and the defendant Rice Mohawk U. S. Construction Co., Ltd., to preclude them from offering evidence at trial, and granted the unopposed motion of the defendant Yonkers Contracting Co., Inc., to strike the complaint insofar as asserted against it on the [*2]ground that the plaintiffs failed to comply with court-ordered discovery.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

A party seeking to vacate a default must demonstrate both a reasonable excuse for the default and the existence of a meritorious claim or defense (see CPLR 5015[a][1]; Svendsen v Professional Bus. Sys., AD3d [2d Dept, Nov. 22, 2004]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393); the movant must submit supporting facts in evidentiary form (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553). Upon renewal and reargument, the Supreme Court properly adhered to its prior determination denying the plaintiffs' motion to vacate an order granting two motions to preclude the plaintiffs from submitting evidence at trial and granting another motion to strike the complaint insofar as asserted against one defendant on the ground that the plaintiffs failed to comply with court-ordered discovery. The plaintiffs still failed to demonstrate a reasonable excuse for their default in complying with court-ordered discovery requests (see MRI Enters., Inc. v Amanat, 263 AD2d 530) and also failed to proffer evidentiary facts demonstrating in an affidavit of merit a connection between the defendants' alleged negligence and the damages they sustained (see Stewart v Tapps Supermarket, 289 AD2d 561; Vargas v Flatbush Pest Control, 178 AD2d 528; Crystal v General Motors Corp., 157 AD2d 821).

We do not consider issues raised in connection with an order dated February 26, 2003, as the plaintiffs did not file a notice of appeal from that order.
PRUDENTI, P.J., RITTER, FISHER and LIFSON, JJ., concur.

2003-04036 DECISION & ORDER ON MOTION
Vinod Kumar, et al., appellants, v
Yonkers Contracting Company, Inc.,
et al., respondents, et al., defendants.
(Index No. 6100/01)

Motion by the respondent Rice Mohawk U.S. Construction Co., Ltd., to dismiss an appeal from so much of an order of the Supreme Court, Queens County, dated March 26, 2003, as, upon renewal and reargument, adhered to a prior determination of the same court dated November 15, 2002, denying their motion to vacate an order of the same court which granted its unopposed motion to preclude the plaintiff from offering evidence at trial on the ground that the notice of appeal from the order dated March 26, 2003, is limited to issues not affecting it. By decision and order on motion of this court dated February 18, 2004, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is[*3]

ORDERED that the motion is denied.
PRUDENTI, P.J., RITTER, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court