        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1343
CA 14-00375
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


TERENCE WINTERS AND MAUREEN WINTERS,
PLAINTIFFS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

UNILAND DEVELOPMENT CORPORATION, UNILAND
CONSTRUCTION CORPORATION, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

BROWN & KELLY, LLP, BUFFALO (H. WARD HAMLIN, JR., OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered April 24, 2013 in a personal injury action. The
order denied plaintiffs’ motion to enter a judgment against defendants
Uniland Development Corporation and Uniland Construction Corporaton
and to set a damages inquest.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the matter is remitted to Supreme Court, Erie County, for an
inquest on damages.

     Memorandum: In this personal injury action, plaintiffs appeal
from an order that denied their motion seeking a default judgment on
the issue of liability against Uniland Development Corporation and
Uniland Construction Corporation (defendants) and a damages inquest.
Supreme Court had previously issued a conditional order providing that
defendants’ answer and affirmative defenses would be stricken if
defendants failed to provide full and complete responses to
plaintiffs’ discovery demands by a certain date. Defendants failed to
comply with that order and, because it was self-executing, it became
absolute and binding upon defendants’ failure to comply with it (see
Gibbs v St. Barnabas Hosp., 16 NY3d 74, 78; Wilson v Galacia Contr. &
Restoration Corp., 10 NY3d 827, 830). Consequently, “it was error, as
a matter of law, not to grant [plaintiffs’] motion” (Fiore v Galang,
64 NY2d 999, 1000; see Gibbs, 16 NY3d at 80), and we therefore reverse
the order, grant plaintiffs’ motion, and remit the matter to Supreme
Court for an inquest on damages (see e.g. Hogan v Vandewater, 104 AD3d
1164, 1165; Burton v Matteliano, 98 AD3d 1248, 1250). We note that
our result herein does not preclude defendants from seeking vacatur of
                                 -2-                          1343
                                                         CA 14-00375

the conditional order pursuant to the procedure outlined in Lauer v
City of Buffalo (53 AD3d 213, 214), and under the principles of such
cases as Woodson v Mendon Leasing Corp. (100 NY2d 62, 68) and Matter
of County of Ontario (Middlebrook) (59 AD3d 1065, 1065).




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
