BARRIGA v. Freddy Barriga, et al., Appellants.

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

Dora BARRIGA, etc., Respondent, v. Anna SAPO, et al., Defendants, Freddy Barriga, et al., Appellants.

Decided: May 26, 1998

Before BRACKEN, J.P., and COPERTINO, SANTUCCI, FLORIO and McGINITY, JJ. Montfort, Healy, McGuire & Salley, Garden City (Edward R. Rimmels and E. Richard Rimmels, Jr., of counsel), for appellants.

In an action, inter alia, to recover damages for personal injuries, the defendants Freddy Barriga and Maria Flores appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated September 5, 1997, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the appellants' motion is granted, and, upon searching the record (CPLR 3212[b] ), the separate motion by the defendants Anna Sapo and German Shapiro for summary judgment is granted, and the complaint is dismissed.

 By order dated March 5, 1997, the Supreme Court granted a 60-day conditional order precluding the plaintiffs from offering any evidence at trial as to damages unless they provided responses to the defendants' discovery demands.   When the plaintiffs failed to timely respond, the defendants Freddy Barriga and Maria Flores and the defendants Anna Sapo and German Shapiro separately moved for summary judgment dismissing the complaint.   Since the plaintiffs did not timely serve responses to the defendants' discovery demands, the conditional order of preclusion became absolute (see, DiPietro v. Duhl, 227 A.D.2d 515, 643 N.Y.S.2d 166;  Bock v. Schiowitz, 168 A.D.2d 593, 563 N.Y.S.2d 432).   In order to be relieved of their default, the plaintiffs needed to demonstrate both a reasonable excuse for their failure to respond as well as a meritorious cause of action (see, DiPietro v. Duhl, supra;  Murdock v. Center for Special Surgery, 199 A.D.2d 482, 605 N.Y.S.2d 387).  Having failed to do so, the plaintiffs were precluded from proving an essential element of their case.   Accordingly, the Supreme Court should have granted the defendants' respective motions for summary judgment (see, DiPietro v. Duhl, supra;  Bock v. Schiowitz, supra).

MEMORANDUM BY THE COURT.

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