MELO v. PAGANO

ORDERED that the order is affirmed, without costs or disbursements.

By order dated February 16, 1999, the Supreme Court, Queens County, issued an order precluding the plaintiff from offering evidence at trial unless she responded to the defendant's discovery demands within a certain time. Upon the plaintiff's failure to comply with the conditional order of preclusion, the defendant moved for summary judgment dismissing the complaint. In response, the plaintiff cross-moved, inter alia, to vacate her default in opposing the motion to preclude. The Supreme Court denied the motion for summary judgment and, in effect, granted the plaintiff's cross motion. We affirm.

The Supreme Court properly granted the plaintiff's cross motion, inter alia, to vacate her default in opposing the defendant's motion to preclude, as she demonstrated a reasonable excuse for her default and a meritorious cause of action (see, Burns v. Casale, 276 A.D.2d 734; Parker v. City of New York, 272 A.D.2d 310). Further, as the Supreme Court, in effect, vacated the plaintiff's default and denied the defendant's motion to preclude, the plaintiff was no longer required to comply with the conditional order of preclusion, or explain why she had not done so. Thus, the defendant was not entitled to summary judgment based on the plaintiff's failure to comply.

O'BRIEN, J.P., FRIEDMANN and COZIER, JJ., concur. FEUERSTEIN, J., dissents and votes to reverse the order, deny the cross motion, inter alia, to vacate the default, reinstate the conditional order of preclusion dated February 16, 1999, and grant the motion for summary judgment dismissing the complaint, with the following memorandum:

I must respectfully dissent from my colleagues' conclusion that the plaintiff established a reasonable excuse for her default in opposing the defendant's motion to preclude. Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see, Gambardella v. Otov Lighting, 278 A.D.2d 494; Parker v. City of New York, 272 A.D.2d 310; DeVito v. Marine Midland Bank, 100 A.D.2d 530), the movant must submit supporting facts in evidentiary form sufficient to justify the default (see, Bravo v. New York City Hous. Auth., 253 A.D.2d 510; Peterson v. Scandurra Trucking Co., 226 A.D.2d 691; American Sigol Corp. v. Zicherman, 166 A.D.2d 628). Further, where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable (see, Eretz Funding v. Shalosh Assoc., 266 A.D.2d 184; Roussodimou v. Zafiriadis, 238 A.D.2d 568).

Here, the claim of the plaintiff's attorney that there was some confusion regarding the return date of the preclusion motion, and whether the case was "marked off", is insufficient to establish a reasonable excuse. Further, the record demonstrates that the plaintiff did not move to vacate her default until the defendant moved for summary judgment dismissing the complaint. Under these circumstances, it was an improvident exercise of discretion for the Supreme Court to accept the plaintiff's proffered excuse as reasonable. Accordingly, I would reverse the order, deny the cross motion, inter alia, to vacate the default, reinstate the conditional order of preclusion dated February 16, 1999, and grant the motion for summary judgment dismissing the complaint.