| Geliga v Karibian, Inc. |
| 2010 NY Slip Op 01614 [70 AD3d 996] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Christopher Geliga et al., Respondents, v Karibian, Inc., etal., Appellants. |
—[*1] The Yankowitz Law Firm, P.C. (Gary P. Kauget, P.C., Brooklyn, N.Y. of counsel), forrespondents. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent Christopher Geliga on the counterclaim.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), datedApril 17, 2009, as denied that branch of their motion which was to vacate a prior order of thesame court dated December 19, 2007, precluding the defendant David Cruz from testifying attrial unless he appeared for an examination before trial on or before March 19, 2008.
Ordered that the order is affirmed insofar as appealed from, with costs.
To avoid the adverse impact of the conditional order of preclusion, the defendants wererequired to demonstrate an excusable default and a meritorious defense to the action (see Leev Arellano, 18 AD3d 620, 621 [2005]; Jenkinson v Naccarato, 286 AD2d 420, 421[2001]; Felicciardi v Town of Brookhaven, 205 AD2d 495, 496 [1994]). Since thedefendants failed to demonstrate an excusable default, that branch of their motion which was tovacate the order of preclusion was properly denied. Fisher, J.P., Santucci, Angiolillo, Hall andLott, JJ., concur.