KAMI SONS INC v. PIPE

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Supreme Court, Appellate Division, First Department, New York.

KAMI & SONS, INC., Plaintiff-Appellant, v. Graham F. PIPE, etc., et al., Defendants-Respondents.

Decided: March 31, 1998

Before MILONAS, J.P., and WALLACH, RUBIN and MAZZARELLI, JJ. Lawrence B. Newman, for plaintiff-appellant. Owen B. Carragher, Jr., for defendants-respondents.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 6, 1996, which granted defendants' motion to strike the complaint pursuant to CPLR 3126, and order, same court and Justice, entered October 25, 1996, which, insofar as appealable, denied plaintiff's motion for renewal, unanimously affirmed, with costs.

 Plaintiff's conclusory denial of defendants' detailed factual presentation demonstrating plaintiff's willful failure to provide discovery, as directed in a conditional order of dismissal, was insufficient to raise a factual issue requiring a hearing, and striking the complaint was a proper exercise of discretion (see, Perez v. New York City Hous. Auth., 229 A.D.2d 310, 644 N.Y.S.2d 517;  Doino v. Meltzer, 208 A.D.2d 798, 617 N.Y.S.2d 854).   Plaintiff's excuse for not laying bare its proof on the original motion to strike the complaint was not sufficient to warrant the introduction of additional evidence on a motion to renew (see, Ramsco, Inc. v. Riozzi, 210 A.D.2d 592, 619 N.Y.S.2d 809).   Plaintiff's claim that it was denied due process by the motion court's reliance on a Special Master's recommendation respecting discovery is improperly raised for the first time on appeal (see, Szigyarto v. Szigyarto, 64 N.Y.2d 275, 280, 486 N.Y.S.2d 164, 475 N.E.2d 777), and we decline to consider it.

MEMORANDUM DECISION.