| Bernal v Singh |
| 2010 NY Slip Op 03053 [72 AD3d 716] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Renato Bernal, Respondent, v Paraminder Singh et al.,Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from (1) anorder of the Supreme Court, Nassau County (Palmieri, J.), entered July 21, 2009, which grantedthe plaintiff's motion pursuant to CPLR 3126 to strike their answer and for leave to enter ajudgment on the issue of liability upon their failure to appear for examinations before trial, and(2) an order of the same court entered September 4, 2009, which denied their motion for leave torenew and reargue their opposition to the plaintiff's motion.
Ordered that the appeal from so much of the order entered September 4, 2009, as denied thatbranch of the defendants' motion which was for leave to reargue is dismissed, without costs ordisbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered July 21, 2009, is affirmed, without costs or disbursements;and it is further,
Ordered that the order entered September 4, 2009, is affirmed insofar as reviewed, withoutcosts or disbursements.
It is settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126lies within the sound discretion of the Supreme Court (see CPLR 3126 [3]; Joseph v Iannace, 6 AD3d 502,503 [2004]; Ordonez v Guerra, 295 AD2d 325, 326 [2002]; Yona v Beth Israel Med.Ctr., 285 AD2d 460, 461 [2001]). The record herein supports the Supreme Court'sdetermination that the defendants' failure to appear for depositions on June 5, 2009, was willfuland contumacious (see Beneficial Mtge.Corp. v Lawrence, 5 AD3d 339, 340 [2004]; Rowell v Joyce, 10 AD3d 601 [2004]). The attorneys for bothsides had agreed upon that date at a compliance conference on June 1, 2009, just four daysearlier, and the resulting compliance conference order had directed the depositions to proceed onthat date starting at 10:00 a.m. in the courthouse.
The defendants' remaining contentions are without merit. Fisher, J.P., Covello, Balkin,Leventhal and Lott, JJ., concur.