Andre v Jones

Andre v Jones 2007 NY Slip Op 05315 [41 AD3d 208] Decided on June 14, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2007
Andrias, J.P., Saxe, Friedman, Nardelli, Malone, JJ.
1327
Index 403334/02

[*1]Claude Andre, Plaintiff-Appellant,

v

Clement Jones, et al., Defendants-Respondents, The City of New York, et al., Defendants.




Monaco & Monaco, LLP, Brooklyn (Antonio Monaco, Jr. of
counsel), for appellant.
Massimo & Panetta, P.C., Garden City (Nicholas J. Massimo
of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 9, 2006, which granted defendants' motion to vacate the order dated December 6, 2005, precluding them from offering evidence at trial, unanimously affirmed, without costs.

Defendants' explanations for their failure to appear for three compliance conferences, i.e., that they believed they were represented by attorneys who had been substituted in place of their original, but since suspended, attorney, and were not notified of the conferences, are reasonable and adequate to support their motion for vacatur of the order of preclusion entered in consequence of their non-appearances (see Simmons v Pantoja, 306 AD2d 399 [2003]). While plaintiff's attorney sent letters notifying defendants of the two latter court dates, the record indicates that they were sent to an incorrect address.

The claim that the complained-of acts by defendant Clement Jones were performed in self-defense sets forth a defense sufficiently meritorious for the purpose of vacatur (see 5015[a][1]; see Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691 [1983]).

M-2358 &

M-2682 - Andre v Jones, et al. Motions seeking leave to supplement record and to strike material denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2007 [*2]

CLERK