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JERRY EADERESTO, plf-res, v. 22 LEROY OWNERS CORP def-ap

8749. JERRY EADERESTO, plf-res, v. 22 LEROY OWNERS CORP def-ap — Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for ap — Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for res — Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 21, 2012, which denied defendants' motion to vacate a selfexecuting order of preclusion against them, and for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of vacating the preclusion order, and otherwise affirmed, without costs.

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8749. JERRY EADERESTO, plf-res, v. 22 LEROY OWNERS CORP def-ap — Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for ap — Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for res — Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 21, 2012, which denied defendants’ motion to vacate a selfexecuting order of preclusion against them, and for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of vacating the preclusion order, and otherwise affirmed, without costs.

The motion court erred in denying that part of defendants’ motion to vacate the self-executing preclusion order (see generally Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 80 [2010]). The record shows that defendants provided a reasonable excuse for their default and subsequent 45-day delay in complying with the order, as the handling attorney in a two-partner firm had been stricken with a serious illness. Defendants also demonstrated a meritorious defense to the action by presenting evidence that plaintiff remained in the shower in defendants’ building despite knowing that the water was too hot.

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