Opinion
11675 Index 652534/14
06-18-2020
HUMBLE MONKEY, LLC, Plaintiff–Appellant–Respondent, v. RICE SECURITIES, LLC, et al., Defendants–Respondents–Appellants.
J. Greenberger, PLLC, New York (Jordan Greenberger of counsel), for appellant-respondent.
J. Greenberger, PLLC, New York (Jordan Greenberger of counsel), for appellant-respondent.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about May 21, 2019, to the extent it denied plaintiff's motion for judgment against defendants for failure to produce a witness for deposition in accordance with a prior court order, unanimously modified, on the law and the facts, to strike defendants' answer, direct that a judgment as to liability be entered in plaintiff's favor, and remand the action for a hearing on damages and attorneys' fees, and defendant's cross-appeal therefrom otherwise dismissed, without costs, for failure to timely perfect ( 22 NYCRR 1250.9 [a] ).
When defendants failed to comply with the self-executing, conditional order striking their answer if they did not produce a witness for deposition by a date certain, the order became absolute ( Diaz v. Maygina Realty LLC, 181 A.D.3d 478, 117 N.Y.S.3d 848 [1st Dept. 2020] ; CPLR 3126[3] ). Defendants' proper recourse was to move to vacate the conditional order on the ground of excusable default ( Mehler v. Jones, 181 A.D.3d 535, 535, 121 N.Y.S.3d 39 [1st Dept. 2020] ; CPLR 5015[a] ). They did not seek that relief. In any event, the excuses for failing to comply with the court's order that defendants asserted in opposition to plaintiff's motion were not reasonable, and defendants failed to seek an adjournment from the court or take any other action to avoid their knowing default.