Beraka v Biton

[*1] Beraka v Biton 2010 NY Slip Op 50854(U) [27 Misc 3d 136(A)] Decided on May 14, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, JJ
570834/09.

George J. Beraka, M.D., Plaintiff-

against

Danielle Biton and Crystal Biton, Defendants-Appellants.

Defendants appeal from 1) an order of the Civil Court of the City of New York, New York County (Karen Sue Smith, J.), dated January 5, 2004, which granted plaintiff's motion to strike the answer of defendant Crystal Biton for noncompliance with a disclosure order, and denied defendants' motion to vacate the disclosure default; 2) an order of the same court (Jeffrey K. Oing, J.), dated November 4, 2009, which denied defendants' motion to vacate the aforesaid January 5, 2004 order; and 3) an order of the same court (Arlene P. Bluth, J.), dated December 30, 2009, which denied defendants' motion for various relief.

Per Curiam.

Orders dated January 5, 2004 (Karen Sue Smith, J.), November 4, 2009 (Jeffrey K. Oing, J.), and December 30, 2009 (Arlene P. Bluth, J.), affirmed, without costs.

In the order dated January 5, 2004, Civil Court properly struck the answer and dismissed the counterclaims of defendant Crystal Biton upon her failure to comply with the terms of a prior conditional order. Civil Court correctly denied defendants' subsequent motion to "vacate" the January 5, 2004 order, which was made more than five years after the order was entered, since that motion was, in effect, an untimely motion for reargument. In any event, defendants demonstrated no basis for vacatur relief, since they neither offered a reasonable excuse for their disclosure defaults nor demonstrated a potentially meritorious defense or counterclaim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 14, 2010