Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 28, 2009. The order granted defendant's motion to preclude plaintiff from presenting any evidence and to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to preclude plaintiff from presenting any evidence and to dismiss the complaint is denied.

In July 2008, the Civil Court granted defendant's motion to compel plaintiff to respond to discovery demands and provide depositions, and to stay the action pending
the resolution of Supreme Court matters. In November 2008, the Civil Court amended its July order by adding the sentences "The stay shall apply to the trials. All discovery and depositions as granted in this order are not covered by the stay and shall proceed." The court also directed defendant to forward a copy of the order to plaintiff's attorney. In February 2009, after plaintiff failed to appear for depositions or respond to defendant's written discovery demands, defendant moved to preclude plaintiff from presenting any evidence and to dismiss the complaint based on plaintiff's failure to comply with the July 2008 and November 2008 orders. By order entered July 28, 2009, the Civil Court granted defendant's motion and dismissed the complaint.

It is uncontroverted that defendant was informed of plaintiff's attorney's new office address in May 2008. Defendant did not present evidence of mailing sufficient to create a presumption that plaintiff received the November 2008 amended order since the affidavit of service states that the amended order was mailed to plaintiff's attorney's former office address, and the certified mail receipt and signed return receipt request card defendant submitted to show that the amended order had, in fact, been mailed to, and received by, plaintiff refer to a different certified number than the one listed on the affidavit of service (cf. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]). Inasmuch as plaintiff provided a reasonable explanation for its failure to appear for depositions and provide discovery responses pursuant to the amended order - - in that it alleged that it had never received the amended order - - plaintiff's failure to comply with said order cannot be said to have been willful, contumacious or in bad [*2]faith. Accordingly, the order is reversed and defendant's motion is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 25, 2011