Furman v. Levine

¶1— In a medical malpractice action, defendant Levine appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Wood, J.), dated February 6, 1981, as denied his motion for summary judgment dismissing plaintiffs’ complaint, with prejudice, and granted that branch of plaintiffs’ cross motion which sought to vacate an order of preclusion entered upon their default. Order affirmed insofar as appealed from, with $50 costs and disbursements. Barasch v Micucci (49 NY2d 594) is inapplicable here since defendant Levine’s motion for an order of preclusion was predicated, in part, upon plaintiffs’ noncompliance with an order which had been vacated prior to said defendant’s motion. Damiani, J. P., Mangano, O’Connor and Brown, JJ., concur.