Opinion
April 25, 1997
Present — Green, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint against defendant Victor DeSimone dismissed. Memorandum: In August 1994 Victor DeSimone (defendant) served demands for a bill of particulars and various disclosure items. Plaintiff did not timely respond to those demands and, on June 20, 1995, a 30-day conditional order of preclusion was entered. Plaintiff failed to comply with that order and, on December 18, 1995, defendant moved for summary judgment dismissing the complaint against him. Supreme Court extended plaintiff's time to respond to defendant's demands and granted defendant's motion "if plaintiff fails to serve responses by March 8, 1996."
Supreme Court improvidently exercised its discretion in failing to grant defendant's motion for summary judgment unconditionally ( see, Johnson v. Heavy Realty Corp., 191 A.D.2d 538; Becerril v Skate Way Roller Rink, 184 A.D.2d 365, 366). In order to be relieved of her default in complying with the conditional preclusion order, plaintiff was required to demonstrate a reasonable excuse for the default and to submit an affidavit of merit ( see, Becerril v. Skate Way Roller Rink, supra, at 366; Coakley v. Gabel, 158 A.D.2d 954, 955, lv dismissed in part and denied in part 76 N.Y.2d 931, rearg denied 76 N.Y.2d 1018). The affidavit of plaintiff's attorney submitted in opposition to defendant's motion established neither a reasonable excuse nor a meritorious cause of action ( see, DiPietro v. Duhl, 227 A.D.2d 515), and "[p]laintiff was not entitled to a second `last chance' to comply" ( Becerril v. Skate Way Roller Rink, supra, at 366). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.)