Tillman v. Mason , 597 N.Y.S.2d 473 ( 1993 )

In an action, inter alia, to recover damages for malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated February 28, 1991, which granted the defendant’s motion to vacate an order of preclusion of the same court, dated November 26, 1990, upon condition that the defendant (1) personally pays the plaintiff $250, (2) complies with CPLR 321 (b), and (3) appears for a deposition.

Ordered that the order is affirmed, without costs or disbursements; and it is further,

Ordered that the defendant’s time to submit to a deposition is extended; the deposition shall be held at a time and place to be specified in a written notice of not less than 10 days to be given by the plaintiff, or at such time and place as the parties may agree; and it is further,

Ordered that the defendant’s time to personally pay the plaintiff $250 and to comply with CPLR 321 (b) is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

An order of preclusion was entered against the defendant on default after he had failed to appear at a deposition. The record, however, reveals that counsel not of record, Stephen Jackson, had informed the plaintiff by telephone several days prior to the proposed oral examination that he was now representing the defendant and that he would not be able to appear at the deposition because of another engagement scheduled for the same time. The record additionally reveals that in moving for a default judgment, the plaintiff did not serve her papers on Jackson. We conclude that under all the circumstances, the failure on the part of the defendant to comply with CPLR 321 (b) did not justify the entry of a default order of preclusion (see, Leucadia, Inc., v Silverman, 100 AD2d 823). The situation presented by the defendant’s noncompliance would have been more appropriately responded to by an order directing compliance with CPLR 321 (b). Mangano, P. J., Sullivan, O’Brien and Pizzuto, JJ., concur.