Gonzalez v Abraham Jaro Realty Corp.

[*1] Gonzalez v Abraham Jaro Realty Corp. 2005 NY Slip Op 50069(U) Decided on January 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-356 K C

BLANCA GONZALEZ, as Administratrix of the Goods, Chattels and Credits of Angela Villanueva, Deceased, Appellant,

against

ABRAHAM JARO REALTY CORP., and "JOE" COLUMBO, first name being fictitious and unknown, Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered December 31, 2003, which denied her motion to vacate a prior order of said court, dated March 20, 2003, dismissing plaintiff's complaint.

Order unanimously affirmed with $10 costs.

Plaintiff instituted this negligence action in 1991. By order entered June 13, 2002 (W. Ritholtz, J.), plaintiff was compelled to provide defendant with certain items of discovery by July 31, 2002. After plaintiff failed to comply with said
order, defendants, by notice of motion returnable December 18, 2002, moved to
strike the complaint or, in the alternative, compel compliance with their discovery demands. The motion was adjourned to March 20, 2003, to afford plaintiff additional time to comply with the demand or oppose the motion. Although plaintiff appeared in court on said date, she failed to comply with the discovery demand or oppose the motion. Plaintiff orally requested a further adjournment. By order entered March
20, 2003 (A. Fisher Rubin, J.), the court denied her request and granted defendants' motion on default, dismissing the complaint. By notice of motion returnable [*2]
December 23, 2003, approximately eight months after the court's dismissal of her action, plaintiff moved to vacate her default. In support of said motion, plaintiff
attached to her moving papers medical authorizations purportedly for the records initially sought by defendants. The authorizations, however, were not properly completed as they authorized release of the medical records of the administratrix of
the estate rather than the decedent. In addition thereto, the moving papers asserted that plaintiff was not in possession of any of the other documents demanded by defendants. In view of the foregoing, and since there was no showing
of a reasonable excuse for plaintiff's failure to timely comply with the demand or to oppose the motion, the court's denial of plaintiff's motion to vacate her default should be affirmed.
Decision Date: January 20, 2005