Lanzot v. Blecher

5 A.D.3d 201, 772 N.Y.S.2d 814, 2004 N.Y. App. Div. LEXIS 2571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about September 18, 2002, which denied plaintiffs motion to strike defendants’ answer, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 21, 2002, which deemed plaintiffs motion to reargue and renew as one to reargue only and, so considered, denied the motion, unanimously dismissed, without costs, as taken from a nonappealable order.

Plaintiffs motion to reargue and renew asserted new claims of willful misconduct that plaintiff inferred from the contents of defendant’s opposition papers to plaintiff’s initial motion to strike defendant’s answer. Plaintiff claims that he would have brought these inferences to the court’s attention had he not been deprived of a fair opportunity to review defendant’s opposition papers and serve a reply. While plaintiff views defendant’s opposition papers as a new fact warranting renewal, it remains that all of the facts bearing on all of the claimed misconduct are contained in the record made on the initial motion to strike. That record, together with plaintiffs argument pertaining thereto, has been reviewed by this Court on the appeal. Upon such review, we find insufficient evidence of willful, contumacious conduct warranting the drastic relief that plaintiff seeks (see Frye v City of New York, 228 AD2d 182 [1996]; Colucci v Jennifer Convertibles, 283 AD2d 224 [2001]), or indeed any lesser sanction. Concur—Nardelli, J.P., Saxe, Williams and Marlow, JJ.