| Ramos v Stern |
| 2012 NY Slip Op 07380 [100 AD3d 409] |
| November 8, 2012 |
| Appellate Division, First Department |
| Luis Ramos, Respondent, v Michael Stern, Appellant, andChamp Construction Corp. et al., Respondents, et al., Defendants. |
—[*1] Leonard C. Spector, Brooklyn, for Luis Ramos, respondent. Goodman & Jacobs, LLP, New York (Sue C. Jacobs of counsel), for Champ Construction Corp., and New York Sand & Stone Inc., respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 6, 2011, whichdenied defendant Michael Stern's motion for summary judgment dismissing the complaint asagainst him, and order, same court and Justice, entered November 10, 2011, which, to the extentappealable, denied his motion to renew, unanimously affirmed, without costs.
Defendant Stern's motion for summary judgment was properly denied, as he never moved tovacate a self-executing, conditional order, entered upon the parties' stipulation, which called forthe striking of his answer in the event he failed to comply with specified discovery demandswithin 60 days (see generally Gibbs vSt. Barnabas Hosp., 16 NY3d 74, 80 [2010]; AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [1st Dept2009]). We find no ambiguity in the self-executing language, which was similar to that utilizedin AWL Indus. (65 AD3d at 905). Once Stern's answer was automatically stricken as aresult of his default, he, upon failing to vacate such default, was deemed to " 'admit[ ] alltraversable allegations in the complaint, including the basic allegation of liability,' but notdamages" (Cillo v Resjefal Corp.,13 AD3d 292, 294 [1st Dept 2004], quoting in part Rokina Opt. Co. v Camera King,63 NY2d 728, 730 [1984]).
The denial of renewal should be affirmed, as Stern's excuse of a family medical emergency inIsrael was available to him at the time of his original motion, and he offered no viable reasonwhy he failed to provide such information at the time of his original motion (see e.g. Henry v Peguero, 72 AD3d600 [1st Dept 2010], appeal dismissed 15 NY3d 820 [2010]). Morever, the motioncourt properly exercised its discretion in rejecting the belated medical excuse as unsubstantiated(see generally Kolbasiuk v Printers Bindary, 93 AD2d 739 [1st Dept [*2]1983]; Aguilar v Djonvic, 282 AD2d 366 [1st Dept 2001]).Even assuming, arguendo, the validity of the excuse, once the grounds for the excuse disappeared(i.e., his return from Israel) Stern still had sufficient time (nearly a month) to comply with theconditional order. Concur—Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam andManzanet-Daniels, JJ.