Lekaj v. Don-Jo Livery Inc.

180 A.D.2d 545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1992
• Status: Published

Opinion

Orders, Supreme Court, Bronx County (Herbert Shapiro, J.), entered April 9, 1991, which granted the motions of defendants Naclerio Construction and Don-Jo Livery to sever plaintiffs’ action against them from plaintiffs’ action against defendant City of New York to the extent of bifurcating the trial as to liability and damages, unanimously affirmed, without costs.

The prior order, which struck defendant City’s answer for failure to comply with discovery, and from which no appeal was taken, may not be reinterpreted at this juncture as striking only the City’s reply to defendant Naclerio’s cross-claim. Contrary to the City’s arguments, the discovery it failed to provide affected the claims of the plaintiffs and all of the remaining defendants. Thus, the sanction imposed, that of striking the answer, was not on its face so unwarranted as to suggest that the prior Justice could not have intended that result. Furthermore, under the circumstances presented, it was sufficient that the non-moving parties "joined” in defendant Naclerio’s request for relief. We have examined the remaining contentions of the parties and find them to be without merit. Concur — Carro, J. P., Milonas, Ellerin and Ross, JJ.