Then v New York City Tr. Auth.

Then v New York City Tr. Auth. 2012 NY Slip Op 07100 Decided on October 24, 2012 Appellate Division, Second 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 October 24, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
JEFFREY A. COHEN, JJ.
2011-02691
(Index No. 19036/05)

[*1]Kevin Then, etc., et al., appellants,

v

New York City Transit Authority, respondent, et al., defendant.




Ira M. Perlman and Robert D. Rosen, Roslyn, N.Y., for appellants
(one brief filed).
Wallace D. Gossett, Brooklyn, N.Y. (Armienti, DeBellis,
Guglielmo & Rhoden, LLP [Vanessa M.
Corchia], of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), entered January 10, 2011, which denied their motion, in effect, pursuant to CPLR 3126(3) to strike the answer of the defendant New York City Transit Authority for failure to comply with a conditional order of preclusion of the same court dated March 4, 2009.

ORDERED that the order entered January 10, 2011, is affirmed, with costs.

Contrary to the plaintiffs' contention, the defendant New York City Transit Authority (hereinafter the NYCTA) timely complied with the Supreme Court's conditional order of preclusion dated March 4, 2009. Consequently, that conditional order never became absolute (see Caval v City of New York, 89 AD3d 885; McGroarty v Long Is. Coll. Hosp., 37 AD3d 431, 431; cf. Pierre v 100 Corp., 97 AD3d 804, 805), and the Supreme Court correctly denied the plaintiffs' motion to strike the NYCTA's answer (see Caval v City of New York, 89 AD3d at 885; McGroarty v Long Is. coll. Hosp., 37 AD3d at 431).
SKELOS, J.P., BALKIN, LEVENTHAL and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court