| Gutman v A to Z Holding Corp. |
| 2012 NY Slip Op 00333 [91 AD3d 718] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Aryeh Gutman, Respondent, v A to Z Holding Corp. et al.,Appellants. |
—[*1] Lebensfeld Borker Sussman & Sharon, LLP, Mount Vernon, N.Y. (Brett R. Schwartz ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of fiduciary duty and for an accounting,the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Schmidt, J.), dated August 7, 2003, as, in effect, granted that branch of theplaintiff's motion which was for leave to renew his opposition to the defendants' prior motion todismiss the complaint and to strike the reply to the counterclaims upon the plaintiff's failure tocomply with a conditional order of dismissal, which had been granted in an order of the samecourt dated December 6, 2002, and, upon renewal, vacated the determination in the order datedDecember 6, 2002, and thereupon denied the defendants' motion and reinstated the complaint andthe reply to the counterclaims on the condition that the plaintiff pay the sum of $5,000 to thedefendants.
Ordered that the order dated August 7, 2003, is modified, on the facts and in the exercise ofdiscretion, by deleting the provisions thereof, upon renewal, denying the defendants' motion todismiss the complaint and to strike the reply to the counterclaims on the condition that theplaintiff pay the sum of $5,000 to the defendants and vacating the determination in the orderdated December 6, 2002, and substituting therefor a provision, upon renewal, adhering to thedetermination in the order dated December 6, 2002, granting the defendants' motion to dismissthe complaint and to strike the reply to the counterclaims; as so modified, the order dated August7, 2003, is affirmed insofar as appealed from, with costs to the defendants.
In an order dated June 6, 2002, the Supreme Court directed the conditional dismissal of thecomplaint unless the plaintiff complied with the defendants' outstanding discovery demands onor before June 20, 2002, and appeared for the continuation of his deposition on July 2, 2002, andJuly 3, 2002. It is undisputed that the plaintiff failed to appear for the continuation of hisdeposition on those days. By order dated December 6, 2002, the Supreme Court granted thedefendants' motion to dismiss the complaint and to strike the reply to the defendants'counterclaims.
The plaintiff moved, inter alia, for leave to renew its opposition to the defendants' motion todismiss the complaint and to strike the reply to the counterclaims. The plaintiff claimed that thedefaults were attributable entirely to his former counsel James Klatsky, who had not informedhim of any of the court orders, or any directive to attend the June 6, 2002, conference, or thedirective to appear on July 2, 2002, and July 3, 2002, for the continuation of his deposition onpenalty of dismissal. The plaintiff also claimed that Klatsky, without the plaintiff's knowledge or[*2]consent, told the court and the defendants' counsel that theplaintiff could not attend the July 2, 2002, continuation of his deposition because the plaintiffwas testifying in another matter. The Supreme Court, in effect, granted leave to renew, and, uponrenewal, vacated the determination in the order dated December 6, 2002, and reinstated thecomplaint and the reply to the counterclaims on the condition that the plaintiff pay the sum of$5,000 to the defendants.
Upon the plaintiff's failure to comply with the conditional order of dismissal entered June 6,2002, the order became absolute (seeMatter of Denton v City of Mount Vernon, 30 AD3d 600 [2006]). Thus, in opposing thedefendants' motion to dismiss the complaint and to strike the reply to the counterclaims, theplaintiff was required to demonstrate that he had a reasonable excuse for the default and apotentially meritorious cause of action.
The plaintiff failed to establish a reasonable excuse for his defaults. The defaults on the partof the plaintiff's former attorney Klatsky are imputed to the plaintiff despite Klatsky's allegedfailure to inform the plaintiff of the outstanding discovery issues and the court's conditional orderof dismissal (see Greenwald v Zyvith, 23 AD2d 201 [1965]). "When a default results notfrom an isolated, inadvertent mistake, but from repeated neglect, as here, there is no requirementthat the court grant the requested relief" (Chery v Anthony, 156 AD2d 414, 417 [1989]).Accordingly, it was an improvident exercise of discretion for the Supreme Court to vacate thedetermination in the December 6, 2002, order granting the defendants' motion to dismiss thecomplaint and the reply to the counterclaims and to reinstate the complaint and the reply (seeMatter of Denton v City of Mount Vernon, 30 AD3d at 600; see also Ragubir v 44 Ct. St., LLC, 60AD3d 833 [2009]).
The defendants' remaining contentions are either not properly before this Court or withoutmerit. Mastro, A.P.J., Eng, Belen and Hall, JJ., concur.