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Roman v Baer
2008 NY Slip Op 50665(U) [19 Misc 3d 133(A)]
Decided on April 2, 2008
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 2, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., SCHOENFELD, HEITLER, JJ

570023/08.

Arturo Roman, Plaintiff-Appellant,

against

Aaron Baer, Roslyn Mann, Harold Peterfreund, Maurice Baer, d/b/a Jacklyn Realty Associates, Defendants-Respondents, -and- K.M. Auto Services, Inc. d/b/a Recon Motor Sales, Defendant.


Plaintiff appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered December 11, 2007, which, in effect, denied defendants-respondents' cross motion for summary judgment with leave to renew upon completion of discovery.


Per Curiam.

Order (Raul Cruz, J.), entered December 11, 2007, reversed to the extent appealed from, without costs, motion denied and matter remanded for a trial on damages.

Inasmuch as the January 17, 2007 conditional order striking defendant-respondents' answer became self-executing upon failure to comply with its terms (see Legrand v D.U. Second Realty Co. v Ferlin Serv. Industries, Inc., 277 AD2d 153 [2000]), defendant-respondents had no pleading before the court. As a result of the court's striking of defendants' answer, defendants were deemed to have admitted all traversable allegations in the complaint, including those relating to liability and notice (see Rokina Optical Co., Inc. v King, 63 NY2d 728, 730 [2004]; Gray v Jaeger, AD3d , 2008 NY Slip Op 01989 [2008]). Accordingly, their cross motion for summary judgment dismissing the complaint on the merits should have been denied and the matter scheduled for a trial on damages.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: April 2, 2008