Opinion
Argued February 15, 2000.
April 3, 2000.
In an action to obtain no fault benefits, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Maltese, J.), dated January 5, 1999, which denied his motion, inter alia, to strike the defendant's answer and set the matter down for inquest, and (2) an amended order of the same court dated January 15, 1999, which, upon consideration of additional reply papers of the plaintiff, adhered to the prior determination.
Bernadette Panzella, P.C., East Norwich, N.Y., for appellant.
Robert M. Spadaro, New York, N.Y., for respondent.
DAVID S. RITTER, J.P., SONDRA MILLER, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated January 5, 1999, is dismissed, as that order was superseded by the amended order dated January 15, 1999; and it is further,
ORDERED that the order dated January 15, 1999, is affirmed; and it is further,
ORDERED that the defendant is awarded one bill of costs.
The Supreme Court providently exercised its discretion in denying the plaintiff's motion, inter alia, to strike the defendant's answer since the plaintiff failed to present evidence that the defendant's failure to comply with any discovery demands was willful, contumacious, or in bad faith (see, CPLR 3126; Frias v. Fortini, 240 A.D.2d 467 ; see also, Garcia v. First Spanish Baptist Church of Islip, 259 A.D.2d 465 ; Garnett v. Hudson Rent A Car, 258 A.D.2d 559 ; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374 ; Battaglia v. Hofmeister, 100 A.D.2d 833 ).
The plaintiff's remaining contentions are without merit.