KOPIN v. WAL MART STORES INC (2002)

Supreme Court properly exercised its discretion in granting plaintiffs' cross motion to strike defendant's answer based upon defendant's failure to comply with court-ordered disclosure and in denying that portion of the motion of defendant seeking renewal of part of its prior motion for a protective order.   The failure of defendant “to comply with two court orders directing disclosure, and its protracted delay in providing a partial response to the plaintiff[s'] discovery demands, which were not adequately explained by the additional facts submitted on renewal, supported an inference that its failure to provide disclosure was willful and contumacious” (Emanuel v. Broadway Mall Props., 293 A.D.2d 708, 709, 741 N.Y.S.2d 278;  see Osterhoudt v. Wal-Mart Stores, 273 A.D.2d 673, 674-675, 709 N.Y.S.2d 685).   Further, the motion of defendant insofar as it sought renewal of part of its prior motion for a protective order was not based on new facts unavailable at the time of the original motion.   Thus, the subsequent motion was one for reargument, the denial of which is not appealable (see Quinn v. Menzel, 282 A.D.2d 513, 722 N.Y.S.2d 892).   The striking of defendant's answer renders moot the appeal and cross appeal from the conditional order compelling disclosure and denying defendant's motion for a protective order (see e.g. Colton, Hartnick, Yamin & Sheresky v. Feinberg, 261 A.D.2d 238, 689 N.Y.S.2d 395;  see also Parisella v. Town of Fishkill, 260 A.D.2d 620, 621, 688 N.Y.S.2d 694;   Mugan v. Mugan, 145 A.D.2d 418, 535 N.Y.S.2d 975).   Finally, the court erred in granting defendant's oral application for an order of confidentiality.   Nothing in the record establishes defendant's entitlement to such an order (see New York State Elec. & Gas Co. v. Lexington Ins. Co., 160 A.D.2d 261, 553 N.Y.S.2d 369;  cf.  McLaughlin v. G.D. Searle, Inc., 38 A.D.2d 810, 811, 328 N.Y.S.2d 899).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the application is denied.

MEMORANDUM: