CLARKE v. UNITED PARCEL SERVICE INC

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

Charles CLARKE, et al., Respondents, v. UNITED PARCEL SERVICE, INC., et al., Appellants, et al., Defendant.

Decided: December 30, 2002

GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, ROBERT W. SCHMIDT and WILLIAM F. MASTRO, JJ. Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Robert S. Sunshine and Thomas Vaughan of counsel), for appellants. Rubenstein & Rynecki (Pollack Pollack Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants United Parcel Service, Inc., and Victor L. Batista appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 19, 2002, which granted the plaintiffs' motion to vacate a judgment of the same court, entered October 26, 2001, dismissing their complaint, except as to the plaintiffs Charles Clarke and Latisha Clarke, who were directed to appear for a physical examination within 30 days as a condition to the granting of the motion as to them.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion is denied, and the judgment is reinstated.

 The Supreme Court entered a judgment dismissing the action after the plaintiffs failed to comply with a prior conditional order of dismissal for failure to disclose.   Since the order and subsequent judgment arose from a motion made on notice by the defendants United Parcel Service, Inc., and Victor L. Batista, the plaintiffs' proper remedy was by way of appeal rather than a motion to vacate the judgment (see Pinapati v. Pagadala, 244 A.D.2d 676, 664 N.Y.S.2d 161;  Reilly v. Syosset Hosp., 225 A.D.2d 602, 639 N.Y.S.2d 126;  Schwenk v. St. Peter's Hosp. of City of Albany, 215 A.D.2d 906, 626 N.Y.S.2d 590;  Herman v. Herman, 191 A.D.2d 535, 595 N.Y.S.2d 329;  Banner Serv. Corp. v. Hall, 185 A.D.2d 613, 587 N.Y.S.2d 872;  Pergamon Press v. Tietze, 81 A.D.2d 831, 438 N.Y.S.2d 831).   Thus, the Supreme Court erred in entertaining the plaintiff's application to vacate the judgment.

 However, even if the conditional order of preclusion and subsequent judgment are deemed to have been entered on default, it is clear that the plaintiffs are not entitled to vacatur of the judgment.   The plaintiffs were required to establish both a reasonable excuse for their default and a meritorious cause of action (see CPLR 5015[a];  Desena v. 486 Henry Supermarket, 269 A.D.2d 557, 704 N.Y.S.2d 821;  Reilly v. Syosset Hosp., supra).   They failed to establish reasonable excuses for their respective failures to appear for independent medical examinations and to produce other specified discovery within the time period set forth in the conditional order of dismissal, and failed to offer any excuse for their repeated failure to comply with the court's discovery orders and the defendants' discovery demands.   A “pattern of willful default and neglect” should not be excused (Gannon v. Johnson Scale Co., 189 A.D.2d 1052, 592 N.Y.S.2d 881;  see Kolajo v. City of New York, 248 A.D.2d 512, 670 N.Y.S.2d 52;  Wynne v. Wagner, 262 A.D.2d 556, 693 N.Y.S.2d 60;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66).   Under these circumstances, the Supreme Court should have denied the plaintiffs' motion.

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