Weinberger v. Rosenkrantz

252 A.D.2d 368, 675 N.Y.S.2d 537, 1998 N.Y. App. Div. LEXIS 7983

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered December 16, 1997, which denied defendant’s motion to vacate the order of the same court and Justice, entered September 10, 1997, striking defendant’s pleadings for failure to appear at a preliminary conference, unanimously affirmed, with costs. Appeal from the order of September 10, 1997 unanimously dismissed, without costs, as taken from a nonappealable order.

The motion court had the discretion to strike defendant’s pleadings upon her failure to appear at the preliminary conference (22 NYCRR 202.27). While that failure alone would not have warranted the striking of the pleadings, the court properly exercised its discretion in this case by reason of defendant’s repeated dilatory tactics with respect to the claims against her, long periods of inaction with respect to her claims against plaintiffs, and history of noncompliance with court orders, all to plaintiffs’ resultant prejudice (see, Mitrany v American Tit. Ins. Co., 238 AD2d 179). Moreover, the lack of merit of defendant’s claims and counterclaims further militates against vacatur of the order. Concur — Rosenberger, J. P., Ellerin, Nardelli, Wallach and Saxe, JJ.