Opinion
February 2, 1998
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the order is modified by deleting the provision thereof which conditioned the appellants moving for summary judgment upon certification by the court that discovery was complete; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
It was not improper for the court to grant conditionally the respondent's motion to strike the appellants' answer unless the appellants paid $750 as attorney's fees in view of the appellants' failure to abide by the explicit terms of the court's preliminary conference order insofar as it directed the appellants to comply with certain discovery demands ( see, CPLR 3126; Summit Waterproofing Restoration Corp. v. Scarsdale Country Estates Owners, 228 A.D.2d 431; Davis v. City of New York, 205 A.D.2d 442). There is also no reason to disturb the additional award of $100 in motion costs pursuant to CPLR 8202.
However, in view of the fact that CPLR 3212 (a) permits a party to "move for summary judgment * * * after issue has been joined", the court improperly limited the appellants to moving for summary judgment only after the court certified that discovery was complete ( see, Heist v. Cameron, 211 A.D.2d 429; Matter of Hochberg v. Davis, 171 A.D.2d 192).
The appellants' remaining contentions are without merit.
Rosenblatt, J. P., Miller, Copertino and Pizzuto, JJ., concur.