Smith v. City of New York

239 A.D.2d 337, 657 N.Y.S.2d 1006, 1997 N.Y. App. Div. LEXIS 4607

Opinion

In an action to recover damages for personal injuries, the defendants 789 St. Marks Realty Corp. and Brenda Management Corp. appeal (1) from an order of the Supreme Court, Kings County (Jackson, J.), dated April 16, 1996, which granted the plaintiff’s motion to strike their answer for failure to appear at an examination before trial, and (2), as limited by their brief, from so much of an order of the same court, dated June 11, 1996, as, in effect, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated April 16, 1996, is dismissed, as that order was superseded by the order dated June 11, 1996, made upon reargument; and it is further,

Ordered that the order dated Juno 11, 1996, is affirmed insofar as appealed from, and it is further, •

Ordered that the respondent is awarded one bill of costs.

The failure of the appellants to abide by the so-ordered stipulation dated September 7, 1995, warranted the agreed-upon sanction of striking their answer (see, CPLR 3126; Will v County of Nassau, 90 AD2d 795; Pan World Constr. Corp. v 791 Park Ave. Corp., 185 AD2d 105, 107). Bracken, J. P., Joy, McGinity and Luciano, JJ., concur.