Opinion
September 29, 1986
Appeal from the Supreme Court, Richmond County (Sullivan, J.).
Order reversed insofar as appealed from, on the law and the facts, with costs, and motion denied.
On July 25, 1984, the plaintiff served a set of interrogatories upon the defendant 1220 Richmond Road Corp. The interrogatories were to be answered within 15 days pursuant to CPLR former 3134 (b). The defendant 1220 Richmond Road Corp. failed to timely answer the interrogatories or move to strike any of the interrogatories pursuant to CPLR 3133. On August 22, 1984, the plaintiff moved, inter alia, to strike the joint answer of the defendants 1220 Richmond Road Corp. and Santina M. Coscia due to their failure to answer the interrogatories. The defendants defaulted on this motion. By order dated September 11, 1984, Special Term (Radin, J.), granted the plaintiff's motion unless the defendant's responded to the interrogatories within 30 days after service of a copy of the order, with notice of entry, upon the defendants' attorney. The defendants were served with a copy of the order on September 21, 1984. Again, the defendants failed to comply within the relevant time requirements. Instead, they waited until November 8, 1984, when they moved, by order to show cause, for leave to serve and file a late set of answers to the interrogatories.
In support of the motion, counsel proffered the following excuses for not timely complying with the conditional order of preclusion: "heavy schedule, lack of cooperation, misfiling of documents, poor response time to your affiant's requests, the outstanding bill for services, and partial law office failure."
In conclusory fashion, both counsel and the defendant Santina M. Coscia stated in their respective affidavits that the defendants had meritorious defenses. The proposed answers to the interrogatories were annexed to the defendants' moving papers, were unverified, and were prepared by the defendants' attorney.
Special Term, by order dated November 21, 1984, granted the defendants' motion on condition that "separate answers to the interrogatories to each defendant [were] provided plaintiff within ten (10) days" of the date of the order. The motion should have been unconditionally denied.
It is well settled that in order to be relieved of a failure in complying with a conditional order of preclusion, the moving party must demonstrate a reasonable excuse for its failure to comply and must show, in evidentiary form from a party with personal knowledge of the facts, that a meritorious cause of action or defense exists (see, Riley v Makowski, 92 A.D.2d 664; Hargett v Health Hosps. Corp., 88 A.D.2d 633; Raphael v Cohen, 87 A.D.2d 815, revd on other grounds 62 N.Y.2d 700).
In the case at bar, the attorney for the defendants 1220 Richmond Road Corp. and Santina M. Coscia proffered excuses, such as his clients' lack of cooperation and examples of law office failure which have traditionally been rejected by the courts, to wit, "heavy schedule * * * misfiling of documents", which were clearly unreasonable (see, Schicchi v Green Constr. Corp., 100 A.D.2d 509).
Furthermore, the conclusory statements of the attorney and the defendant Coscia regarding the merits of the action were insufficient to establish a meritorious defense (see, Hargett v Health Hosps. Corp., supra). The unverified answers to the interrogatories, although prepared by counsel and not the defendant Coscia, may be considered by the court since they were based on documentary evidence annexed thereto (see, Weingarten v Marcus, 118 A.D.2d 640; Zuckerman v City of New York, 49 N.Y.2d 557). However, a review of that documentary evidence fails to reveal a valid defense to the causes of action asserted in the plaintiff's complaint. Mangano, J.P., Weinstein, Eiber and Spatt, JJ., concur.