Thompson v. County of Erie , 91 A.D.2d 850 ( 1982 )

— Order reversed, without costs, and defendant, Consolidated Rail Corporation’s cross motion granted, in accordance with the following memorandum: Plaintiff David Thompson sues to recover damages for personal injuries sustained in an accident occurring June 11,1976. The action was commenced on September 9, 1977 and defendant Consolidated Rail Corporation answered and demanded discovery promptly. On February 25, 1980 a conditional order of preclusion was granted against plaintiffs for failure to comply with defendant’s discovery demands. The order became final in March, 1980. In June of 1981 the attorney arguing this appeal, who is not the attorney of record, moved for discovery and to vacate defendant’s prior preclusion order. Despite the fact that counsel does not allege that a formal substitution of attorneys was ever executed (see CPLR 321) and the record contains none, and despite the fact that the moving papers fail to demonstrate any excuse for the default (see Suggs v Hrabb, 91 AD2d 819; Clements v Peters, 33 AD2d 1096), Special Term vacated the preclusion order by the first order appealed and denied defendant’s cross motion for summary judgment. The order is reversed. Defendant’s cross motion for summary judgment is granted. In view of our decision appellant’s motion to dismiss because of respondents’ failure to timely serve his brief and appendix is denied as academic. Concur — Simons, J. P., Hancock, Jr., Doerr and Moule, JJ.; Callahan, J., dissents and votes to affirm for the reasons stated at Special Term, Gossel, J. (Appeal from order of Supreme Court, Erie County, Gossel, J. — vacate preclusion order, summary judgment.) Present — Simons, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.