JOHN v. CITY OF NEW YORK (1999)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 10, 1997, which, upon the grant of third-party defendant's motion to renew and reargue, vacated a prior order, same court and Justice, entered on or about May 23, 1997, which order had vacated a default order, same court and Justice, entered January 24, 1997, granting third-party defendant's cross motion to dismiss the third-party complaint for non-compliance with discovery, unanimously affirmed, without costs.

 The court has broad discretion to grant renewal and properly did so here, where third-party defendant did not have notice of third-party plaintiff's prior motion to vacate a default and submitted additional information not previously before the court on the motion to vacate (Framapac Delicatessen, Inc. v. Aetna Cas. and Sur. Co., 249 A.D.2d 36, 670 N.Y.S.2d 491;  see also, Robinson v. New York City Hous. Auth., 61 A.D.2d 746, 401 N.Y.S.2d 809).

 On renewal, the court properly reinstated the default order dismissing the third-party complaint.   A party seeking vacatur of a default must demonstrate both that it has a meritorious claim or defense and a reasonable excuse for the default (Goncalves v. Stuyvesant Dev. Assocs., 232 A.D.2d 275, 648 N.Y.S.2d 441).   Here, even if the failure of third-party plaintiff's attorney to appear in court for oral argument is excused as law office failure, no excuse at all was given for the failure to respond to the motion to preclude (id.).   Nor were the conclusory assertions of third-party plaintiff's attorney and the unverified pleadings submitted sufficient to demonstrate the merit of its underlying claim (id.;  Cooper v. Badruddin, 192 A.D.2d 997, 597 N.Y.S.2d 206).   The absence of an affidavit of merit will not be excused where, as here, non-compliance is willful and contumacious (cf., Wasserman v. Manoco Co., 100 A.D.2d 758, 474 N.Y.S.2d 28;  see, Williamson v. City of New York, 249 A.D.2d 248, 671 N.Y.S.2d 653).   In reinstating the default order, the IAS court properly disregarded the technical defect in third-party defendant's underlying cross motion seeking dismissal of the third-party complaint for non-compliance with court-ordered discovery, since third-party plaintiff had notice of the motion and an opportunity to be heard.

MEMORANDUM DECISION.