| Estate of Alston v Ramseur |
| 2015 NY Slip Op 00490 [124 AD3d 713] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Estate of Charlie Alston, Respondent, v RaymiVictoria Ramseur, Appellant. |
Roger V. Archibald, Brooklyn, N.Y., for appellant.
Alter & Barbaro, Brooklyn, N.Y. (Stephen V. Barbaro of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, the defendantappeals from an order of the Supreme Court, Queens County (Sampson, J.), entered June21, 2013, which granted the plaintiff's motion pursuant to CPLR 3126 to strike heranswer for failure to comply with , among other things, an order of the Supreme Court,Kings County (Ruchelsman, J.), dated April 5, 2012, and to set the matter down for ahearing on the assessment of damages.
Ordered that the order entered June 21, 2013, is affirmed, with costs.
In an order dated April 5, 2012 (hereinafter the conditional order), the SupremeCourt, Kings County, directed that the defendant's answer "shall be stricken unless" sheappeared for a deposition on or before May 5, 2012. It is undisputed that the defendantfailed to comply with the conditional order. In March 2013, the venue of this action waschanged from Kings County to Queens County. The Supreme Court, Queens County,granted the plaintiff's motion to strike the defendant's answer for failure to comply with,inter alia, the conditional order, and to set the matter down for a hearing on theassessment of damages.
As a result of the defendant's failure to appear for her deposition on or before May 5,2012, the conditional order became absolute (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d827, 830 [2008]; Almonte vPichardo, 105 AD3d 687, 688 [2013]; Pugliese v Mondello, 67 AD3d 880, 881 [2009]; Baturov v Marchewka, 10AD3d 345 [2004]; D'Aloisiv City of New York, 7 AD3d 750 [2004]; Hall v Penas, 5 AD3d 549 [2004]). To be relieved of theadverse impact of the conditional order, the defendant was required to demonstrate areasonable excuse for her failure to appear for a deposition and a potentially meritoriousdefense (see Gibbs v St.Barnabas Hosp., 16 NY3d 74, 80 [2010]; Almonte v Pichardo, 105AD3d at 688; Panagiotou vSamaritan Vil., Inc., 66 AD3d 979, 980 [2009]; Zouev v City of New York, 32AD3d 850 [2006]). The defendant did neither. Accordingly, the Supreme Courtproperly granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendant'sanswer for her failure to comply with, inter alia, the conditional order, and to set thematter down for a hearing on the assessment of damages. Rivera, J.P., Dickerson, Romanand Cohen, JJ., concur.