Opinion
March 2, 2000
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 20, 1999, denying plaintiff's motion to vacate an order, same court and Justice, entered January 28, 1999, which, upon plaintiff's default, struck plaintiff's pleadings and vacated the preliminary injunction previously granted plaintiff, unanimously affirmed, without costs. Appeal from the aforesaid order, entered January 28, 1999, unanimously dismissed, without costs, as taken from a nonappealable paper.
Daniel Finkelstein, for Plaintiff-Appellant.
Jeffrey L. Braun, for Defendant-Respondent.
SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, ANDRIAS, JJ.
Plaintiff's motion to vacate the order entered on its default, striking its complaint and answer to defendant's counterclaims, was properly denied since plaintiff failed to demonstrate a meritorious defense to the counterclaim and a reasonable excuse for its default (see, John v. City of New York, 260 A.D.2d 187). In view of plaintiff's willful and systematic failure to provide discovery or to respond to defendant's motions, its proffered excuse of law office failure is insufficient (see, Wynne v. Wagner, 262 A.D.2d 556, 693 N.Y.S.2d 60, lv dismissed 94 N.Y.2d 796). Indeed, were the January 28, 1999 default order striking the complaint reviewable, we would find the extreme sanction of dismissal to have been a proper exercise of discretion, where the record reveals that plaintiff repeatedly and systematically failed to comply with court-ordered discovery (see, Zletz v. Wetanson, 67 N.Y.2d 711;Kutner v. Feiden, Dweck Sladkus, 223 A.D.2d 488, lv denied 88 N.Y.2d 802; Stanfill Plumbing and Heating Corp. v. Dravo Constructors, Inc., 216 A.D.2d 101).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.