Opinion
2890N, 2890NA.
Decided March 11, 2004.
Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about September 18, 2002, which denied plaintiff's motion to strike defendants' answer, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 21, 2002, which deemed plaintiff's motion to reargue and renew as one to reargue only, and, so considered, denied the motion, unanimously dismissed, without costs, as taken from a nonappealable order.
Anthony V. Gentile, Plaintiff-Appellant.
Wendy B. Shepps, Defendants-Respondents.
Before: Nardelli, J.P., Saxe, Williams, Marlow, JJ.
Plaintiff's motion to reargue and renew asserted new claims of willful misconduct that plaintiff inferred from the contents of defendant's opposition papers to plaintiff's initial motion to strike defendant's answer. Plaintiff claims that he would have brought these inferences to the court's attention had he not been deprived of a fair opportunity to review defendant's opposition papers and serve a reply. While plaintiff views defendant's opposition papers as a new fact warranting renewal, it remains that all of the facts bearing on all of the claimed misconduct is contained in the record made on the initial motion to strike. That record, together with plaintiff's argument pertaining thereto, have been reviewed by this Court on the appeal. Upon such review, we find insufficient evidence of willful, contumacious conduct warranting the drastic relief that plaintiff seeks ( see Frye v. City of New York, 228 A.D.2d 182; Colucci v. Jennifer Convertibles, 283 A.D.2d 224), or indeed any lesser sanction.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.