Opinion
2012-11-8
Luis RAMOS, Plaintiff–Respondent, v. Michael STERN, Defendant–Appellant, Macro Enterprises, LTD., et al., Defendants, Champ Construction Corp., et al., Defendants–Respondents.
Zisholtz & Zisholtz, LLP, Mineola (Robert Vadnais of counsel), for appellant. Leonard C. Spector, Brooklyn, for Luis Ramos, respondent.
Zisholtz & Zisholtz, LLP, Mineola (Robert Vadnais of counsel), for appellant. 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.
ANDRIAS, J.P., SAXE, MOSKOWITZ, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 6, 2011, which denied defendant Michael Stern's motion for summary judgment dismissing the complaint as against him, and order, same court and Justice, entered November 10, 2011, which, to the extent appealable, denied his motion to renew, unanimously affirmed, without costs.
Defendant Stern's motion for summary judgment was properly denied, as he never moved to vacate a self-executing, conditional order, entered upon the parties' stipulation, which called for the striking of his answer in the event he failed to comply with specified discovery demands within 60 days ( see generally Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 (2010); AWL Indus., Inc. v. QBE Ins. Corp., 65 A.D.3d 904, 885 N.Y.S.2d 71 [1st Dept.2009] ). We find no ambiguity in the self-executing language, which was similar to that utilized in AWL Indus., 65 A.D.3d at 905, 885 N.Y.S.2d 71. Once Stern's answer was automatically stricken as a result of his default, he, upon failing to vacate such default, was deemed to “ ‘admit[ ] all traversable allegations in the complaint, including the basic allegation of liability,’ but not damages” ( Cillo v. Resjefal Corp., 13 A.D.3d 292, 294, 787 N.Y.S.2d 269 [1st Dept.2004], quoting in part Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 [1984] ).
The denial of renewal should be affirmed, as Stern's excuse of a family medical emergency in Israel was available to him at the time of his original motion, and he offered no viable reason why he failed to provide such information at the time of his original motion ( see e.g. Henry v. Peguero, 72 A.D.3d 600, 900 N.Y.S.2d 49 [1st Dept.2010], appeal dismissed15 N.Y.3d 820, 908 N.Y.S.2d 152, 934 N.E.2d 886 [2010] ). Moreover, the motion court properly exercised its discretion in rejecting the belated medical excuse as unsubstantiated ( see generally Kolbasiuk v. Printers Bindary, 93 A.D.2d 739, 461 N.Y.S.2d 286 [1st Dept.1983];Aguilar v. Djonvic, 282 A.D.2d 366, 723 N.Y.S.2d 474 [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 the conditional order.