| Caprio v 1025 Manhattan Ave. Corp. |
| 2009 NY Slip Op 04367 [63 AD3d 656] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Laurel Caprio et al., Appellants, v 1025 Manhattan Avenue Corp.,Doing Business as Mark Bar, et al., Respondents. |
—[*1] Maloof, Lebowitz, Connahan & Oleske, PA, New York, N.Y. (Jerald F. Oleske of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Hinds-Radix, J.), dated July 17, 2008, which granted thedefendants' motion to vacate a prior order of the same court (Rothenberg, J.), dated February 7,2008, granting the plaintiffs' unopposed motion pursuant to CPLR 3126 to strike the defendants'answers for failure to respond to court-ordered disclosure, and upon vacatur, granted theplaintiffs' motion only conditionally.
Ordered that the order dated July 17, 2008 is reversed, on the law, with costs, and thedefendants' motion to vacate the order dated February 7, 2008 is denied.
In order to vacate their default in opposing the plaintiffs' motion pursuant to CPLR 3126 tostrike their answers, the defendants were required to demonstrate a reasonable excuse for theirdefault and a meritorious defense to both the motion and the action (see CPLR 5015 [a][1]; Nowell v NYU Med. Ctr., 55AD3d 573 [2008]; Raciti v SandsPoint Nursing Home, 54 AD3d 1014 [2008]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392[2008]; Diamond v Vitucci, 36AD3d 650 [2007]). The defendants failed to set forth a reasonable excuse for their default inopposing the plaintiffs' motion. Although the defendants' attorney claimed that he did not receivethe plaintiffs' motion papers, his mere denial of receipt was insufficient to rebut the proof that themotions papers were properly mailed and the presumption of receipt arising from that proof(see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; [*2]Diamond v Vitucci, 36 AD3d650 [2007]; Philippi v MetropolitanTransp. Auth., 16 AD3d 654, 655 [2005]; Sarva v Chakravorty, 14 AD3d 689 [2005]; Platonov vSciabarra, 305 AD2d 651 [2003]). The defendants also failed to demonstrate a meritoriousdefense to the motion to strike their answers by offering an adequate explanation for their failureto fully and timely respond to the plaintiffs' discovery demands and court directives requiringcompliance with such demands (seeHowe v Jeremiah, 51 AD3d 975 [2008]; Watson v Hall, 43 AD3d 435, 436 [2007]; Devito v J & J Towing, Inc., 17 AD3d624 [2005]). Under these circumstances, the defendants' motion to vacate the order datedFebruary 7, 2008 should have been denied. Rivera, J.P., Dillon, Covello, Eng and Hall, JJ.,concur.