Todisco v Jeri

[*1] Todisco v Jeri 2004 NY Slip Op 51235(U) Decided on October 21, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2002-480 N C

LORENZO TODISCO, Respondent,

against

VICTOR JERI and JUANA JERI, Appellants.

Appeal by defendants from a judgment of the District Court, Nassau County (C. Quinn, J.), entered on February 19, 2002, awarding plaintiff the sum of $17,015.95 and from an order of the same court, entered on January 31, 2002, which granted plaintiff's motion to strike defendants' answer.

Appeal from order unanimously dismissed.

Judgment unanimously reversed without costs, order granting plaintiff's motion striking defendants' answer vacated, plaintiff's motion to strike defendants' answer denied and matter remanded to the court below for all further proceedings.

The appeal from the order entered on January 31, 2002 must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The record indicates that defendants complied with the lower court's conditional order and they also served a supplemental bill of particulars within the time specified by the court below. Thus, plaintiff was not entitled to the sanction of striking defendants' answer pursuant to CPLR 3126. Moreover, plaintiff did not demonstrate that defendants' conduct was willful, contumacious or in bad faith. Accordingly, the court below erred in granting plaintiff's motion to strike defendants' answer (see Charter One Bank v Houston, 300 AD2d 429 [2002]).

In view of the foregoing, we pass upon no other issue raised on appeal.
Decision Date: October 21, 2004