Finnegan v. Ulrich

288 A.D.2d 342, 733 N.Y.S.2d 873, 2001 N.Y. App. Div. LEXIS 11270

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Suffolk County (Hall, J.), entered September 26, 2000, as, upon an order of the same court dated May 9, 2000, granting the motion of the defendant Towne Bus Corp. for summary judgment dismissing the complaint insofar as asserted against it, and denying that branch of her cross motion which was to strike the answer of Towne Bus Corp. upon its alleged failure to timely comply with a preliminary conference order, dismissed the complaint insofar as asserted against that defendant.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, so much of the order dated May 9, 2000, as granted the motion of the defendant Towne Bus Corp., for summary judgment dismissing the complaint insofar as asserted against it is vacated, and that motion is denied, with leave to renew after further discovery.

In view of the failure of Towne Bus Corp. (hereinafter Towne) to comply with discovery requests, the granting of its motion for summary judgment dismissing the complaint insofar as asserted against it was premature (see, Brophy v Metropolitan Life Ins. Co., 278 AD2d 351; Esposito v Metropolitan Transp. Auth., 264 AD2d 370; Colicchio v Port Auth., 246 AD2d 464).

The Supreme Court, however, properly denied that branch of the plaintiff’s cross motion which was to strike Towne’s answer upon its alleged failure to timely comply with a preliminary conference order. Goldstein, J. P., McGinity, H. Miller and Townes, JJ., concur.