Perritt v. Smithtown General Hospital

136 A.D.2d 686, 524 N.Y.S.2d 101, 1988 N.Y. App. Div. LEXIS 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1988
• Status: Published

Opinion

—In a medical malpractice action, the defendant Warren Weber appeals from an order of the Supreme Court, Suffolk County (D’Amaro, J.), entered May 22, 1987, which denied his motion to vacate a prior order of the same court, dated January 11, 1985, which had granted the plaintiff’s motion to strike his answer for willful failure to comply with an order of disclosure.

Ordered that the order is affirmed, with costs.

The order which the defendant Warren Weber seeks to vacate struck his answer for failure to comply with an order of disclosure. Such an order is properly reviewable by direct appeal and not by motion to vacate a default pursuant to CPLR 5015 (a) (Pergamon Press v Tietze, 81 AD2d 831, Iv dismissed 54 NY2d 605; cf, Berlin v Schlotthauer, 117 AD2d 768). The appellant has already availed himself of such appellate review—albeit unsuccessfully—and may not now attempt to relitigate the issues decided therein (Perritt v Smithtown Gen. Hosp., 122 AD2d 256, Iv dismissed 68 NY2d 997). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.