Bret Saberhagen v Thomas Sweeney

Saberhagen v Sweeney 2006 NY Slip Op 03071 [28 AD3d 737] April 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Bret Saberhagen, Respondent,
v
Thomas Sweeney et al., Appellants. (And a Third-Party Action.)

—[*1]In an action, inter alia, for a judgment declaring that the plaintiff is entitled to certain money held in escrow, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Costello, J.), dated January 25, 2005, which, inter alia, granted the plaintiff's motion to strike the defendants' answer and counterclaims.

Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the plaintiff is entitled to the money held in escrow.

Under the facts of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to strike the defendants' answer and counterclaims (see CPLR 3126 [3]; Kim v Harrison, 287 AD2d 547, 548 [2001]; Nicoletti v Ozram Transp., 286 AD2d 719 [2001]).

The defendants' remaining contention is without merit.

We note that the plaintiff failed to establish his claim that this appeal should be [*2]dismissed as untimely taken.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is entitled to the money held in escrow (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.