Craigie v. Consolidated Edison Co. of New York, Inc.

127 A.D.2d 556, 511 N.Y.S.2d 359, 1987 N.Y. App. Div. LEXIS 43025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1987
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated May 24, 1985, which denied his motion to strike the answer of the defendant City of Yonkers pursuant to CPLR 3126 (3).

Ordered that the order is affirmed, without costs or disbursements.

Trial Term did not err in denying the plaintiffs motion to strike the answer of the defendant City of Yonkers based on its failure to comply with a prior order of the same court dated March 15, 1985, directing disclosure. The provisions of that earlier order were stayed by reason of the city’s filing of a notice of cross appeal from said order (see, CPLR 5519 [a] [1]; see also, Matter of Willoughby Nursing Home v Axelrod, 113 AD2d 617). We note, however, that the city has since failed to timely perfect its cross appeal. As a result, its cross appeal has been dismissed and the city must now comply with the court-ordered discovery.

We further note that the record herein is replete with instances in which the city has engaged in purposefully evasive and dilatory tactics to avoid a timely resolution of this action. As a result, the plaintiff has been forced to proceed with several motions in an attempt to obtain discovery. The city’s conduct herein is totally inexcusable. If the city continues to engage in such tactics with respect to the discovery directed by the prior order dated March 15, 1985, the city’s answer should then be stricken pursuant to CPLR 3126 (3). Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.