Kami & Sons, Inc. v. Pipe

248 A.D.2d 312, 670 N.Y.S.2d 484, 1998 N.Y. App. Div. LEXIS 3354

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 6, 1996, which granted defendants’ motion to strike the complaint pursuant to CPLR 3126, and order, same court and Justice, entered October 25, 1996, which, insofar as appeal-able, denied plaintiffs motion for renewal, unanimously affirmed, with costs.

Plaintiffs conclusory denial of defendants’ detailed factual presentation demonstrating plaintiffs willful failure to provide discovery, as directed in a conditional order of dismissal, was insufficient to raise a factual issue requiring a hearing, and striking the complaint was a proper exercise of discretion (see, Perez v New York City Hous. Auth., 229 AD2d 310; Doino v Meltzer, 208 AD2d 798). Plaintiffs excuse for not laying bare its proof on the original motion to strike the complaint was not sufficient to warrant the introduction of additional evidence on a motion to renew (see, Ramsco, Inc. v Riozzi, 210 AD2d 592). Plaintiffs claim that it was denied due process by the motion court’s reliance on a Special Master’s recommendation respecting discovery is improperly raised for the first time on appeal (see, Szigyarto v Szigyarto, 64 NY2d 275, 280), and we decline to consider it.

Concur — Milonas, J. P., Wallach, Rubin and Mazzarelli, JJ.