Luna v Amsterdam 2201 Assoc.

[*1] Luna v Amsterdam 2201 Assoc. 2007 NY Slip Op 51305(U) [16 Misc 3d 129(A)] Decided on June 29, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-681 Q C.

Antonia Luna and Domingo Sandoval, Appellants,

against

Amsterdam 2201 Associates, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered February 7, 2006. The order, insofar as appealed from, denied plaintiffs' motion to vacate a prior order which granted on default defendant's motion to dismiss the complaint pursuant to CPLR 3126.

Order reversed without costs, plaintiffs' motion to vacate the prior order dismissing the action granted on condition that, within 45 days of the date of the order entered hereon, plaintiffs comply with defendant's discovery demands; otherwise plaintiffs' motion denied.

Defendant's motion to dismiss the action pursuant to CPLR 3126 was granted on default. Plaintiffs' counsel alleged in support of the motion to vacate said order that he suffered from a brain aneurysm which prevented him from personally appearing and opposing the motion to dismiss the action. Upon the totality of the circumstances presented, plaintiffs' motion to vacate is granted on condition that plaintiffs comply with defendant's discovery demands within 45 days.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 29, 2007