C & N Camera & Electronics, Inc. v. Public Service Mutual Insurance

210 A.D.2d 132, 621 N.Y.S.2d 843, 1994 N.Y. App. Div. LEXIS 12717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about December 29, 1993, which granted plaintiff’s motion for reargument, and upon reargument denied defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

In light of the fact that plaintiff satisfactorily provided detailed answers to the vast majority of the interrogatories and, with regard to those few to which it was unable to be more specific, satisfactorily explained that the post-loss inventory percentage method of calculating damages, which both plaintiff’s and defendant’s adjusters utilized, precluded it from giving more detailed answers, there was no basis to strike the complaint. Indeed, absent is any evidence that plaintiff’s failure to provide more details was willful or contumacious (see, Lull v Breiter, 127 AD2d 530, mod 129 AD2d 493). We also note that it was proper for Justice Schoenfeld to hear the motion to reargue Justice Ciparick’s prior order since the case had been reassigned to Justice Schoenfeld, the new Justice presiding in said Part, prior to the date the reargument motion was heard (Billings v Berkshire Mut. Ins. Co., 133 AD2d 919, lv dismissed 70 NY2d 1002; Dalrymple v King Community Unity Health Ctr., 127 AD2d 69). Concur—Rosenberger, J. P., Wallach, Kupferman, Ross and Williams, JJ.