22 NYCRR 202.21(d); CPLR § 3126; CPLR 5015; Presumption of receipt

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5015 Relief from judgment or order

22 NYCRR 202.21 Note of issue and certificate of readiness
(d) Pretrial proceedings
Where a party is prevented from filing a note of issue and certificate
of readiness because a pretrial proceeding has not been completed for
any reason beyond the control of the party, the court, upon motion
supported by affidavit, may permit the party to file a note of issue
upon such conditions as the court deems appropriate. Where unusual or
unanticipated circumstances develop subsequent to the filing of a note
of issue and certificate of readiness which require additional pretrial
proceedings to prevent substantial prejudice, the court, upon motion
supported by affidavit, may grant permission to conduct such necessary
proceedings.

Redmond v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 04042 (App. Div., 2nd, 2009)

In an action to recover damages for medical malpractice and wrongful
death, the plaintiff appeals from an order of the Supreme Court, Queens
County (O'Donoghue, J.), entered September 16, 2008, which denied her
motion to vacate an order of the same court dated April 10, 2008, sua
sponte, precluding her from conducting examinations before trial of the
defendants Kenneth Fretwell and Jeffrey Chan pursuant to CPLR 3126.

ORDERED that the order entered September 16, 2008, is reversed,
on the law and in the exercise of discretion, without costs or
disbursements, and the motion to vacate the order dated April 10, 2008,
is granted.

The record does not demonstrate that the plaintiff's counsel
willfully and contumaciously obstructed the progress of disclosure with
respect to the examinations before trial of the defendants Kenneth
Fretwell and Jeffrey Chan (hereinafter the defendant doctors)
(see Maceno v Franklin Hosp. Med. Ctr., 14 AD3d 663, 664; Santigate v Linsalata, 304 AD2d 639, 641; Gorokhova v Belulovich,
267 AD2d 202, 203). Accordingly, the Supreme Court improvidently
exercised its discretion in, sua sponte, imposing the sanction of
preclusion with respect to the examination before trial of the
defendant doctors (see CPLR 3126; cf., Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352), and in denying the plaintiff's motion to vacate the order imposing that sanction.
[*2]

Meadow Lane Equities Corp. v Hill, 2009 NY Slip Op 04396 (App. Div., 2nd, 2009)

In an action, inter alia, for a permanent injunction, the defendants
appeal from so much of an order of the Supreme Court, Nassau County
(Phelan, J.), entered June 11, 2008, as denied their motion, inter
alia, to direct nonparty First New York Partners to preserve certain
evidence contained on electronic databases and to permit the
examination thereof.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in
determining that the defendants did not demonstrate unusual or
unanticipated circumstances warranting the discovery requested through
their motion (see 22 NYCRR 202.21[d]
; Gomez v New York City Tr. Auth., 19 AD3d 366, 366-367; cf. Scanga v Family Practice Assoc. of Rockland, P.C., 41 AD3d 576, 576-577).

Caprio v 1025 Manhattan Ave. Corp., 2009 NY Slip Op 04367 (App. Div., 2nd, 2009)

In order to vacate their default in opposing the plaintiffs' motion
pursuant to CPLR 3126 to strike their answers, the defendants were
required to demonstrate a reasonable excuse for their default and a
meritorious defense to both the motion and the action (see CPLR 5015[a][1]; Nowell v NYU Med. Ctr., 55 AD3d 573; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Diamond v Vitucci, 36 AD3d 650).
The defendants failed to set forth a reasonable excuse for their
default in opposing the plaintiffs' motion. Although the defendants'
attorney claimed that he did not receive the plaintiffs' motion papers,
his mere denial of receipt was insufficient to rebut the proof that the
motions papers were properly mailed and the presumption of receipt
arising from that proof
(see Kihl v Pfeffer, 94 NY2d 118, 122; [*2]Diamond v Vitucci, 36 AD3d 650; Philippi v Metropolitan Transp. Auth., 16 AD3d 654, 655; Sarva v Chakravorty, 14 AD3d 689; Platonov v Sciabarra, 305
AD2d 651). The defendants also failed to demonstrate a meritorious
defense to the motion to strike their answers by offering an adequate
explanation for their failure to fully and timely respond to the
plaintiffs' discovery demands and court directives requiring compliance
with such demands
(see Howe v Jeremiah, 51 AD3d 975; Watson v Hall, 43 AD3d 435, 436; Devito v J & J Towing, Inc., 17
AD3d 624). Under these circumstances, the defendants' motion to vacate
the order dated February 7, 2008, should have been denied.

The bold is mine.

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