Toribio v. J.D. Posillico, Inc.

268 A.D.2d 394, 702 N.Y.S.2d 278, 2000 N.Y. App. Div. LEXIS 804

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (George Friedman, J.), entered March 19, 1999, which granted plaintiffs motion to strike defendant Derez Contracting Corp.’s answer pursuant to CPLR 3126, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered June 30, 1999, denying Derez’s motion to reargue, unanimously dismissed, without costs.

In light of defendant Derez’s failure to timely and satisfactorily explain its longstanding noncompliance with the court’s direction that it produce a knowledgeable witness for deposition, the motion court justifiably concluded that Derez was willfully frustrating the conduct of discovery and properly granted plaintiffs motion to strike Derez’s answer (see, Seamon v Apel, 191 AD2d 406). Derez’s motion for reconsideration of plaintiffs motion to strike, although nominally seeking both renewal and reargument, is properly viewed simply as one for reargument (see, Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27, lv denied in part and dismissed in part 80 NY2d 1005), and no appeal lies from the denial of reargument (Macias v New York City Tr. Auth., 240 AD2d 196). Concur—Nardelli, J. P., Ellerin, Saxe and Buckley, JJ.