Opinion
175N
February 13, 2003.
Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered September 7, 2001, which, at a preliminary conference, struck defendants' answer, unanimously dismissed, without costs.
Robert A. Banner, for Plaintiffs-Respondents.
Stephen I. Feder, for Defendants-Appellants.
Before: Tom, J.P., Sullivan, Ellerin, Marlow, Gonzalez, JJ.
The subject order is not appealable as of right (see Postel v. New York Univ. Hosp., 262 A.D.2d 40, 41). While a subsequent motion to vacate or renew would have properly placed the issue defendants now seek to raise before this Court (see Torres v. New York City Hous. Auth., 298 A.D.2d 207, 748 N.Y.S.2d 147; Daniels v. City of New York, 291 A.D.2d 260; Boyle v. City of New York, 269 A.D.2d 135;Postel, supra), the record is devoid of any such motion.
Were we to reach the merits, we would find that defendants, while submitting a meritorious defense in the form of their verified answer (see Ellis v. Jackson, 267 A.D.2d 20), failed to set forth the necessary reasonable excuse for failing to comply with the court's repeated directions to provide discovery (see Color Wheel, Inc. v. Interstate Printing, 281 A.D.2d 161). The assertion by counsel was insufficient for this purpose.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.