Pierre v. Delish Bakery & Restaurant, Inc.

294 A.D.2d 417, 742 N.Y.S.2d 842, 2002 N.Y. App. Div. LEXIS 5116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Seaton A. Bro-wen appeals from (1) an order of the Supreme Court, Kings County (Harkavy, J.), dated May 8, 2001, which granted the plaintiffs’ motion to strike his answer pursuant to CPLR 3126 (3) for refusal to comply with orders for disclosure, and (2) an order of the same court, dated August 14, 2001, which denied his motion denominated as one for renewal and reargument of the plaintiffs’ prior motion to strike the answer, which was, in fact, one for leave to reargue.

Ordered that the appeal from the order dated August 14, 2001 is dismissed, without costs or disbursements; and it is further,

Ordered that the order dated May 8, 2001 is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The motion by the defendant Seaton A. Browen, although denominated as one for renewal and reargument of the plaintiffs’ prior motion to strike his answer pursuant to CPLR 3126 (3), was not based upon new facts which were unavailable at the time he opposed the original motion (see Bossio v Fiorillo, 222 AD2d 476). Therefore, his motion was, in fact, one for leave to reargue, the denial of which is not appealable.

We agree with the Supreme Court that Browen’s failure to appear for a deposition, despite three previous court orders compelling him to do so, was willful and contumacious. Therefore, the Supreme Court properly struck his answer (see CPLR 3126 [3]; Owolabi v Fairview Nursing Home, 209 AD2d 678). The fact that Browen disappeared or made himself unavailable provides no basis for denying a motion to strike his answer (see Boera v Batz, 236 AD2d 349). Ritter, J.P., Florio, Goldstein, Luciano and Cozier, JJ., concur.