BAEZ v. WURM (1997)

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Rohl, J.), dated April 5, 1996, which denied his motion, in effect, for leave to enter a default judgment against the defendants on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion, in effect, for leave to enter a default judgment against the defendants on the issue of liability is granted, and the matter is remitted to the Supreme Court, Suffolk County, for an inquest on damages.

The plaintiff's motion, characterized as one for “partial summary judgment”, was predicated on a prior order striking the defendants' answers for their failure to comply with discovery demands.   The plaintiff should have characterized the motion as one for leave to enter a default judgment against the defendants on the issue of liability pursuant to CPLR 3215.   In the interests of expediency and judicial economy, and in light of the fact that the defendants' answers were stricken because of their deliberate and contumacious failure to comply with discovery, the plaintiff's motion should have been granted (see, CPLR 2001;  County of Nassau v. Cedric Constr. Corp., 100 A.D.2d 890, 891, 474 N.Y.S.2d 549).

MEMORANDUM BY THE COURT.