4305 10th Ave. Corp. v Rivera

[*1] 4305 10th Ave. Corp. v Rivera 2004 NY Slip Op 50699(U) Decided on June 30, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2003-1234 K C

4305 10th AVENUE CORP. and MOSHE FETMAN, Respondents,

against

KATRINA RIVERA, "JOHN" RIVERA (HUSBAND), SHARON RIVERA, PHILIP RIVERA, DANIELLE BROCKSTEDT, YVETTE BROCKSTEDT and JOHN DOE 1-10, Appellants.

Appeals by defendants from an order of the Civil Court, Kings County

(G. Wright, J.), entered December 31, 1998, granting plaintiffs' motion seeking to preclude defendants from offering evidence and for summary judgment on the issue of liability, and from the ensuing judgment, as amended, entered on July 10, 2000, in favor of plaintiffs after a hearing assessing damages at which defendants did not appear.

Appeal from order entered December 31, 1998 unanimously dismissed as the right of direct appeal therefrom terminated with the entry of the judgment (Matter of Aho, 39 NY2d 241 [1976]).

Judgment unanimously reversed without costs, order precluding defendants and granting plaintiffs' motion for summary judgment vacated, plaintiffs' motion to preclude defendants and for summary judgment denied and matter remanded for further proceedings.

Preliminarily, we note that matters raised on appeal pertaining to the conduct of the inquest leading to entry of the judgment, and the proof taken thereat, are not properly before the court, as the inquest was not contested and the resulting judgment was entered upon defendants' [*2]default (see CPLR 5511; see e.g. Louis v Louis, 231 AD2d 632 [1996]). Nevertheless, the appeal from the judgment brings up for review the order of December 31, 1998, as parties may, on such an appeal, obtain review of "matters which were the subject of contest below" and which necessarily affect the judgment (Credit-Based Asset Servicing & Securitization v Chaudry, 304 AD2d 708 [2003], quoting James v Powell, 19 NY2d 249, 256 n 3 [1967]).

The court below abused its discretion in entering the order of preclusion against
defendants, who were not, in fact, in violation of the time limits of a Supreme Court preliminary conference order of May 21, 1998, not mentioned in the court's order, entered immediately prior to the case's transfer to Civil Court. This order superseded the prior Supreme Court discovery order of April 3, 1998, the alleged violation of which formed the entire basis of plaintiffs' motion. While generally the penalties for failure to comply with the court's discovery orders are within the sound discretion of the court, preclusion, particularly an order of preclusion that was not even conditional in nature, was not warranted in the circumstances of this action (see Thomas v Benedictine Hosp., 296 AD2d 781 [2002]). In addition, to the extent that the court's order may be read as a grant of summary judgment to plaintiffs on liability, plaintiffs' motion papers, which argue for judgment as a matter of law based solely upon defendants' inability, once precluded, to mount a defense, fall far short of establishing prima facie entitlement to judgment as a matter of law independent of defendants' inability, once precluded, to present a defense (see generally Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]).

Given the long period that has elapsed since the events at issue in the lawsuit, we do not attempt to resolve the various further issues raised by the motion papers, but remand the matter to the court below for further proceedings.
Decision Date: June 30, 2004