| Newell v Hirsch |
| 2009 NY Slip Op 06519 [65 AD3d 1108] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Barbara Newell, Respondent, v Joseph Hirsch,Appellant. |
—[*1] Felberbaum, Halbridge & Wirth, Commack, N.Y. (Robert C. Wirth of counsel), forrespondent.
In an action to recover damages, inter alia, for personal injuries, the defendant appeals from(1) an order of the Supreme Court, Nassau County (Mahon, J.), dated April 18, 2008, whichdenied his motion to vacate a prior order of the same court (Alpert, J.), dated July 13, 2005,granting the plaintiff's unopposed motion for summary judgment on the issue of liability, and (2)an order of the same court (Mahon, J.), dated June 19, 2008, which denied his motion to compelproduction of a bill of particulars and a response to discovery demands or, in the alternative, topreclude the plaintiff from offering any evidence at trial.
Ordered that the orders dated April 18, 2008, and June 19, 2008, are affirmed, with one billof costs.
The plaintiff commenced this action in October 1999, alleging that she had been assaulted bythe defendant. Issue was joined in January 2000. The defendant was convicted of the assault inJanuary 2002. The plaintiff's motion for summary judgment on the issue of liability was grantedwithout opposition on July 13, 2005, and the plaintiff filed a note of issue on July 21, 2005. InJanuary 2008, the defendant moved to vacate the order awarding summary judgment to theplaintiff. The Supreme Court denied that motion in the first order appealed from, dated April 18,2008. On May 7, 2008, the defendant moved to compel the plaintiff to comply with his demandsfor a bill of particulars and discovery that were dated April 15, 2008, or, in the alternative, topreclude the plaintiff from offering any evidence at trial. The Supreme Court denied that motionin the second order appealed from, dated June 19, 2008.
A defendant seeking to vacate an order entered upon his or her default in opposing a motionmust demonstrate both a reasonable excuse for the default and a meritorious defense to themotion and the action (see DiamondTruck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389 [2008]; Matter of Gambardella v Ortov Light., 278 AD2d494, 495 [2000]; Neuman v Greenblatt, 260 AD2d 616, 617 [1999]). Here, the defendantfailed to demonstrate either and the Supreme Court, thus, properly denied his motion to vacatethe order granting the plaintiff's unopposed motion for summary judgment on the issue ofliability (see [*2]Diamond Truck Leasing Corp. v CrossCountry Ins. Brokerage, Inc., 62 AD3d at 745-746; Matter of Gambardella v OrtovLight, 278 AD2d at 495; Neuman v Greenblatt, 260 AD2d at 617).
The Supreme Court also properly denied the defendant's motion to compel the plaintiff tocomply with his discovery demands served nearly three years after the note of issue was filed. Inorder to obtain such belated relief, the defendant was required to demonstrate unusual orunanticipated circumstances and substantial prejudice (see 22 NYCRR 202.21 [d];Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2000]). The defendant did not do so.Spolzino, J.P., Skelos, Dillon and Covello, JJ., concur.