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Fuller v. Tae Kwon

Appellate Division of the Supreme Court of New York, Second Department
Mar 22, 1999
259 A.D.2d 662 (N.Y. App. Div. 1999)

Opinion

March 22, 1999

Appeal from the Supreme Court, Westchester County (Coppola, J.).


Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with one bill of costs, the motions are granted, the cross motion is denied, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The plaintiff failed to oppose a motion to preclude evidence and failed to comply with a conditional order of preclusion. In cross-moving to vacate her defaults, the plaintiff did not demonstrate a reasonable excuse or the existence of a meritorious cause of action against the appellants. Her counsel's vague statement regarding unspecified personal problems is insufficient to excuse the defaults ( see, Korea Exch. Bank v. Attilio, 186 A.D.2d 634; see also, Smith v. Fritz, 148 A.D.2d 438). Furthermore, absent the submission of an unredacted doctor's affidavit to the court for in camera inspection, the doctor's unsigned and redacted affidavit submitted in support of the cross motion was insufficient to demonstrate the merits of the action ( cf., Marano v. Mercy Hosp., 241 A.D.2d 48, 50 [submission of redacted affidavit in opposing a motion for summary judgment is acceptable where unredacted original is also submitted to the court for in camera inspection]; see, e.g., Napierski v. Finn, 229 A.D.2d 869; Carrasquillo v. Rosencrans, 208 A.D.2d 488; Zuck v. Sierp, 169 A.D.2d 717 [submission of redacted and unredacted affidavit is the proper procedure in the context of a motion for leave to serve an amended complaint]). Accordingly, the Supreme Court improvidently exercised its discretion by vacating the orders that had been entered on the plaintiffs default.

Since the plaintiff is precluded from offering evidence of the appellants' alleged negligence, the appellants are entitled to summary judgment dismissing the complaint insofar as asserted against them ( see, Bock v. Schiowitz, 168 A.D.2d 593).

Mangano, P. J., Santucci, McGinity and Luciano, JJ., concur.


Summaries of

Fuller v. Tae Kwon

Appellate Division of the Supreme Court of New York, Second Department
Mar 22, 1999
259 A.D.2d 662 (N.Y. App. Div. 1999)
Case details for

Fuller v. Tae Kwon

Case Details

Full title:PATRICIA T. FULLER, Respondent, v. TAE KWON et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 22, 1999

Citations

259 A.D.2d 662 (N.Y. App. Div. 1999)
686 N.Y.S.2d 831

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