Opinion
June 29, 1995
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Plaintiffs were repeatedly forced to seek court intervention relative to discovery. More than once, the IAS Court directed the deposition of defendant's witness and the provision of the disputed information. Only at the eleventh hour did defendant first assert its dubious claim that the information was privileged. Not until faced with the immediate possibility of an order striking the answering pleadings did defendant protest on the ground that there was practical difficulty in producing the witness and the disputed information, and then its counsel was unable to be consistent about the whereabouts of the witness. Under these circumstances, it was not an improvident exercise of discretion to strike defendant's pleadings ( see generally, Lowitt v. Korelitz, 152 A.D.2d 506, 507).
The appeals from the second and third orders are moot. The reasons given for striking plaintiffs' note of issue no longer matter now that there will be no trial on liability, nor do the reasons given for not requiring disclosure of the allegedly confidential information.
Concur — Rosenberger, J.P., Kupferman, Asch, Nardelli and Mazzarelli, JJ.