Ferrarese v. USAA Casualty Insurance

271 A.D.2d 401, 707 N.Y.S.2d 327, 2000 N.Y. App. Div. LEXIS 3770

Opinion

—In an action to obtain no fault benefits, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Maltese, J.), dated January 5, 1999, which denied his motion, inter alia, to strike the defendant’s answer and set the matter down for inquest, and (2) an amended order of the same court dated January 15, 1999, which, upon consideration of additional reply papers of the plaintiff, adhered to the prior determination.

Ordered that the appeal from the order dated January 5, 1999, is dismissed, as that order was superseded by the amended order dated January 15, 1999; and it is further,

Ordered that the order dated January 15, 1999, is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, to strike the defendant’s answer since the plaintiff failed to present evidence that the defendant’s failure to comply with any discovery demands was willful, contumacious, or in bad faith (see, CPLR 3126; Frias v Fortini, 240 AD2d 467; see also, Garcia v First Spanish Baptist Church, 259 AD2d 465; Garnett v Hudson Rent A Car, 258 AD2d 559; Kubacka v Town of N. Hempstead, 240 AD2d 374; Battaglia v Hofmeister, 100 AD2d 833).

The plaintiffs remaining contentions are without merit. Ritter, J. P., S. Miller, McGinity and. Feuerstein, JJ., concur.