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Jenkinson v. Naccarato

Appellate Division of the Supreme Court of New York, Second Department
Aug 20, 2001
286 A.D.2d 420 (N.Y. App. Div. 2001)


Submitted June 27, 2001.

August 20, 2001.

In an action to recover damages, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated June 16, 2000, which granted the defendant's motion for a final order of preclusion and dismissal of the complaint, and (2) an order of the same court, dated October 17, 2000, which denied their motion, in effect, for reargument.

Finkelstein Partners, Newburgh, N.Y. (Steven Lim of counsel), for appellants.

MacCartney, MacCartney, Kerrigan MacCartney, Nyack, N.Y. (Mary E. Marzolla of counsel), for respondent.

Before: Lawrence J. Bracken, P.J., William D. Friedmann, Anita R. Florio, Howard Miller, Sandra L. Townes, JJ.

ORDERED that the appeal from the order dated October 17, 2000, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 16, 2000, is affirmed; and it is further,

ORDERED that the defendant is awarded one bill of costs.

As a result of the plaintiffs' failure to fully comply with a conditional order of preclusion dated May 17, 1999, that conditional order became absolute (see, Stewart v. City of New York, 266 A.D.2d 452; Tirone v. Staten Island Univ. Hosp., 264 A.D.2d 415; Askenazi v. Hymil Mfg. Co., 263 A.D.2d 443). To avoid the adverse impact of the conditional order of preclusion, the plaintiffs were required to either comply with the order or to demonstrate an excusable default and a meritorious claim (see, Mann v. Dachel, 210 A.D.2d 461, 462; Felicciardi v. Town of Brookhaven, 205 A.D.2d 495, 496). The plaintiffs did neither. Since the order of preclusion prevented them from making a prima facie case, the Supreme Court properly dismissed the complaint (see, Michaud v. City of New York, 242 A.D.2d 369; Celestin v. Delta Int'l Mach. Corp., 239 A.D.2d 309; Clissuras v. Concord Vil. Owners, 233 A.D.2d 475).

The plaintiffs' motion, denominated as one for reargument and renewal, was based on the affidavit of the plaintiff Holly Jenkinson explaining why she had not complied with the defendant's notice to produce and the conditional order of preclusion. The plaintiffs did not give a reasonable explanation for their failure to provide this affidavit on the original motion. Therefore, the plaintiffs' motion was in effect, for reargument, the denial of which is not appealable (see, Baciu v. City Univ. of New York, A.D.2d [2d Dept., May 14, 2001]; Muro v. Bay Ready Mix Supplies, A.D.2d [2d Dept., Apr. 16, 2001]; Privitera v. City of New York, 277 A.D.2d 367).

Summaries of

Jenkinson v. Naccarato

Appellate Division of the Supreme Court of New York, Second Department
Aug 20, 2001
286 A.D.2d 420 (N.Y. App. Div. 2001)
Case details for

Jenkinson v. Naccarato

Case Details


Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 20, 2001


286 A.D.2d 420 (N.Y. App. Div. 2001)
730 N.Y.S.2d 244

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