QUALITY JEWELRY COMPANY INC v. Iser Abramovitz, et al., Persons Aggrieved-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

QUALITY JEWELRY COMPANY, INC., Plaintiff-Appellant, v. Mendel MARCOVICI, et al., Defendants-Respondents, Iser Abramovitz, et al., Persons Aggrieved-Appellants.

Decided: February 19, 1998

Before MILONAS, J.P., and RUBIN, TOM and ANDRIAS, JJ. Barbara A. Matarazzo and Iser Abramovitz, for Plaintiff-Appellant. Clifford J. Chu, for Defendants-Respondents. Iser Abramovitz, Pro Se. Barbara A. Matarazzo, for Persons Aggrieved-Appellants.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 26, 1996, which granted the motion of defendants Asher Spitzer, Limo Import and Export of Canada 1992, and AS Diamond Corp. pursuant to CPLR 2221(a) to renew and reargue and vacated the order of the same court and Justice, entered on or about June 24, 1996, which had stricken the answer of the defendants remaining in the action, awarded plaintiffs judgment against such defendants on all issues of liability on the causes of action in the complaint and ordered an assessment of damages, on condition that:  all outstanding discovery be completed by these defendants within 45 days, defendants pay $1500 to plaintiffs' counsel for partial reimbursement of their costs and no further motions were to be made until completion of discovery, unanimously affirmed, without costs.   Appeals from orders, same court and Justice, entered March 4, 1996 and June 24, 1996, unanimously dismissed, without costs, as academic in light of the foregoing.

Despite the moving defendants' long history of non-compliance with a discovery schedule originally set by the IAS court on April 11, 1995 and their failure to comply with its March 4, 1996 order, which had given the movants and their then attorney one final opportunity to cure their default, the court vacated its June 24, 1996 order under principles of basic fairness, finding that for the first time movants finally had competent counsel and should be given the opportunity to defend this action, alleging RICO violations, on its merits.

Given our strong policy favoring the resolution of disputes on their merits and the circumstances presented, where the IAS court was fully familiar with all the prior proceedings and there was no finding of contumacious conduct or undue prejudice to plaintiff, we find the court's order a sound exercise of its discretion.


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