Opinion
December 8, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
The motion court did not improvidently exercise its discretion ( see, Lasidi, S. A. v. Financiera Avenida, 73 N.Y.2d 947, 950) in determining that defendant's conduct was not so blatantly contumacious as to warrant the ultimate sanction of striking defendant's answer ( see, Spancrete Northeast v. Travelers Indem. Co., 99 A.D.2d 623, 624). Nor did the court err in denying the motion for summary judgment insofar as the motion sought dismissal of defendant's answer ( see, DuLuc v. Resnick, 224 A.D.2d 210). Defendant's first counterclaim for abuse of process, however, was insufficiently pleaded and does not lie under the circumstances at bar ( see, Lesyk v. Putnam County News Recorder, 164 A.D.2d 881, 882-883). Its second counterclaim, purportedly for punitive damages, does not state an independent ground for relief nor does defendant's pleading allege an underlying tort sufficiently wanton to support a claim for punitive damages ( see, Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 614).
Concur — Milonas, J. P., Nardelli, Williams and Andrias, JJ.