Owolabi v. Fairview Nursing Home, Inc.

209 A.D.2d 678, 619 N.Y.S.2d 679, 1994 N.Y. App. Div. LEXIS 11760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Jay Flo Associates appeals, (1) as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated May 22, 1993, as granted the plaintiffs’ motion to strike its answer and, (2) as limited by its brief, from so much of an order of the same court, dated July 15, 1993, as denied the branch of its motion which was for reargument.

Ordered that the appeal from the order dated July 15, 1993, is dismissed, since no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated May 22, 1993, is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

Upon our review of the record, we agree with the Supreme Court that the appellant’s failure to appear for a deposition, despite two previous court orders compelling it to do so, was willful and contumacious. Thus, the Supreme Court properly struck the appellant’s answer (see, CPLR 3126 [3]; Arnoff v Lorio, 208 AD2d 581; Fucci v Fucci, 166 AD2d 551). Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.