Opinion
2001-05413, 2001-08237
Submitted April 10, 2002.
May 13, 2002.
In an action to recover damages for personal injuries, etc., the defendant Seaton A. Browen appeals from (1) an order of the Supreme Court, Kings County (Harkavy, J.), dated May 8, 2001, which granted the plaintiffs' motion to strike his answer pursuant to CPLR 3126(3) for refusal to comply with orders for disclosure, and (2) an order of the same court, dated August 14, 2001, which denied his motion denominated as one for renewal and reargument of the plaintiffs' prior motion to strike the answer, which was, in fact, one for leave to reargue.
Milber Makris Plousadis Seiden, LLP, Garden City, N.Y. (Christine Andreoli of counsel), for appellant.
Oshman, Helfenstein, Mirisola Schwartz, LLP, New York, N.Y. (David L. Kremen of counsel), for respondents.
Before: DAVID S. RITTER, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
ORDERED that the appeal from the order dated August 14, 2001, is dismissed, without costs or disbursements; and it is further,
ORDERED that the order dated May 8, 2001, is affirmed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
The motion by the defendant Seaton A. Browen, although denominated as one for renewal and reargument of the plaintiffs' prior motion to strike his answer pursuant to CPLR 3126(3), was not based upon new facts which were unavailable at the time he opposed the original motion (see Bossio v. Fiorillo, 222 A.D.2d 476). Therefore, his motion was, in fact, one for leave to reargue, the denial of which is not appealable.
We agree with the Supreme Court that Browen's failure to appear for a deposition, despite three previous court orders compelling him to do so, was willful and contumacious. Therefore, the Supreme Court properly struck his answer (see CPLR 3126; Owolabi v. Fairview Nursing Home, 209 A.D.2d 678). The fact that Browen disappeared or made himself unavailable provides no basis for denying a motion to strike his answer (see Boera v. Batz, 236 A.D.2d 349).
Motion by the respondents on appeals from two orders of the Supreme Court, Kings County, dated May 8, 2001, and August 14, 2001, respectively, inter alia, to strike certain material from the reply brief on the grounds that the issues are being raised for the first time in the reply brief or refer to matter dehors the record. By decision and order of this court, dated February 7, 2002, the branch of the motion which was to strike certain material from the brief was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is,
ORDERED that the branch of the motion which is to strike material from the reply brief is granted and all references to issues raised for the first time in the reply brief or to matters dehors the record are stricken and have not been considered by the court.
RITTER, J.P., FLORIO, GOLDSTEIN, LUCIANO and COZIER, JJ., concur.