| Molyneaux v City of New York |
| 2009 NY Slip Op 05610 [64 AD3d 406] |
| July 2, 2009 |
| Appellate Division, First Department |
| Thomas Molyneaux et al., Respondents, v City of NewYork et al., Appellants. |
—[*1] Finz & Finz, P.C., Jericho (Jay L. Feigenbaum of counsel), for respondents.
Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered January 24, 2008, whichgranted plaintiffs' motion pursuant to CPLR 3126 to strike defendants' answer for noncompliancewith a prior conditional discovery order, and directed an assessment of damages, unanimouslyreversed, on the law and the facts, without costs, the motion denied and the answer reinstated.Appeal from order, same court (Edgar G. Walker, J.), entered August 10, 2007, which, inter alia,deemed defendants' cross motion to renew and reargue their prior cross motion for summaryjudgment as a motion to reargue, and, so considered, denied the motion as untimely,unanimously dismissed, without costs, as abandoned.
The injured plaintiff alleges that he sustained personal injuries when his car was hit in therear by a commercial garbage truck. According to plaintiff, defendant police officer arrived atthe scene, told plaintiff to stay in his car, assured him that he and the other responding officerswould obtain the names of the truck's owner and driver and the truck's licence number and that areport of the accident would be available at the 52nd Precinct. Although the officers thenproceeded to gather the information, when plaintiff went to the precinct and requested a copy ofthe report, he was told that no such report had been filed, and plaintiff has since been unable toobtain the information necessary to locate the owner or driver of the truck. The theory of theaction is that because of the negligent mishandling of the report by defendants City and policeofficer, plaintiff, and his wife, who sues derivatively, were "deprived of the opportunity to seekrecourse for [their] injuries."
The court improperly granted plaintiffs' CPLR 3126 motion in the absence of the requiredaffirmation by their attorney that the latter had conferred with defendants' attorney in a goodfaith effort to resolve the issues raised by the motion (22 NYCRR 202.7 [a] [2]; see Cerreta vNew Jersey Tr. Corp., 251 AD2d 190 [1998]). In addition, there was also no clear showingthat any failure by the City to comply with the conditional order was willful, contumacious or inbad faith (see Reidel v Ryder TRS,Inc., 13 AD3d 170, 171 [2004]).
Defendants represent in their brief that they "recently filed a stipulation withdrawing [their]appeal from the August [10] 2007 Order" denying their cross motion seeking, inter alia, renewalof their motion for summary judgment; such withdrawal apparently was in response to [*2]such leave having been granted during the pendency of the appeal.The stipulation, however, is not on file with the Clerk of this Court. Accordingly, we deem theappeal from the August 10, 2007 order abandoned, and dismiss it. Concur—Gonzalez,P.J., Tom, Mazzarelli, Andrias and Saxe, JJ.