Kahre-Richardes Family Foundation, Inc. v. Village of Baldwinsville

Order unanimously, reversed, with costs, and motion granted. Memorandum: Plaintiffs move for an order vacating the default judgment dismissing their complaint against defendant village because of plaintiffs’ failure to serve answers to interrogatories in compliance with a conditional order (see CPLR 3126). Special Term properly decided to grant the motion in the exercise of its discretion inasmuch as there was no showing that plaintiffs’ failure was willful or contumacious (see Brothers v Scott, 81 AD2d 753; Ortiz v New York City Health & Hosps. Corp., 72 AD2d 741, 742) but subsequently rescinded its decision when informed that another court in a concurrent motion had dismissed so much of the complaint as sought a declaration of tax exemption. Inasmuch as we have reinstated the request for a declaratory judgment (see Kahre-Richardes Family Foundation v Village of Baldwinsville, 101 AD2d 689), we reverse and grant the motion as directed in Special Term’s original decision. (Appeal from order of Supreme Court, Onondaga County, Tenney, J. — vacate default judgment.) Present — Hancock, Jr., J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.