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LAUER v. CITY OF BUFFALO

53 A.D.3d 213 (2008)

862 N.Y.S.2d 675

CHRISTINE LAUER, Appellant, v. CITY OF BUFFALO et al., Defendants, and NIAGARA FRONTIER TRANSIT AUTHORITY et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

July 3, 2008.

Attorney(s) appearing for the Case

Nelson S. Torre, Buffalo, for plaintiff-appellant.

Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Thomas J. Speyer of counsel), for defendants-respondents.

LUNN, FAHEY and PINE, JJ., concur.

OPINION OF THE COURT

HURLBUTT, J.P.

The primary issue presented on this appeal is whether a party who has failed to comply with a conditional order striking its answer as a discovery sanction pursuant to CPLR 3126 (3) may seek relief from its default in failing to comply by a motion to vacate that order pursuant to CPLR 5015 (a) (1). We conclude that such relief is available, and we further conclude that Supreme Court properly granted the motion of defendants...

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