Opinion
April 5, 1976
In an action on a contract, plaintiff appeals from (1) an order of the Supreme Court, Dutchess County, dated November 6, 1975, which denied its renewed motion to vacate a prior order of preclusion and for leave to serve a bill of particulars and (2) an order of the same court, dated November 20, 1975, which denied a fourth renewal of plaintiff's motion to (a) vacate a prior order which dismissed its complaint for failure to appear upon the call of the Trial Calendar and (b) restore the case to said calendar. Order dated November 6, 1975 reversed, and motion granted, without costs or disbursements; order dated November 20, 1975 modified by adding the following to the decretal paragraph thereof, after the word "denied": "as to defendant Frances O. Senter and granted as to defendant Richard Senter"; as so modified, order affirmed, without costs or disbursements. The said dispositions are made upon condition that plaintiff's counsel of record personally pay the sum of $350 to defendant Richard Senter within 20 days after service upon plaintiff of a copy of the order to be made hereon, together with notice of entry thereof; otherwise orders affirmed, with one bill of $50 costs and disbursements to defendant Richard Senter. Under the circumstances of this case, plaintiff should have been relieved of the consequences of its defaults upon the stated condition (see Moran v Rynar, 39 A.D.2d 718; Miniotis v Dugan Bros., 44 A.D.2d 708; Sommer v Fucci, 47 A.D.2d 771). However, in light of the fact that defendant Frances O. Senter died during the pendency of the action, and as plaintiff's moving papers concede that "it would appear that there is no basis for holding [her] responsible for the performance of the contract", the dismissal of its complaint against her should not be disturbed. Martuscello, Acting P.J., Latham, Cohalan, Rabin and Titone, JJ., concur.