Brown v. City of New York

281 A.D.2d 381, 721 N.Y.S.2d 281, 2001 N.Y. App. Div. LEXIS 2117

Opinion

—In an action to recover damages for wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Spodek, J.), dated July 14, 1999, which granted the defendants’ motion, in effect, to reargue the plaintiffs’ motion to strike their answer and, upon reargument, vacated a prior order of the same court dated May 5, 1999, striking the defendants’ answer upon their alleged default in responding to the motion.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendants’ motion, in effect, to reargue the plaintiffs’ motion to strike their answer (see, Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565; Fellin v Sahgal, 268 AD2d 456). The defendants established that they did not default in responding to the motion to strike, but had submitted opposition papers in which they provided a reasonable excuse for their failure to furnish the court-ordered discovery (see, Peterson v Melchiona, 269 AD2d 375; cf., Miller v Jablonski, 266 AD2d 363). Bracken, Acting P. J., Florio, H. Miller and Smith, JJ., concur.