Opinion
January 6, 1994
Appeal from the Supreme Court, Bronx County (Howard R. Silver, J.).
The court's refusal to dismiss the answer was a proper exercise of its discretion (see, Sawh v. Bridges, 120 A.D.2d 74, 77-78, appeal dismissed 69 N.Y.2d 852). There was no showing of "a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation" and the "drastic sanction of unconditionally striking an answer" (Forman v. Jamesway Corp., 175 A.D.2d 514, 515-516), particularly since defense counsel had provided plaintiff with a letter from the excess carrier admitting to coverage. Nor are sanctions warranted against plaintiff's counsel herein under 22 N.Y.CRR part 130. Finally, we vacate that portion of the court's order as to excess insurance which was without a legal basis.
Concur — Sullivan, J.P., Carro, Rosenberger and Wallach, JJ.