Opinion
2001-03719, 2001-08794
Submitted September 6, 2002.
September 24, 2002.
In an action, inter alia, to recover damages for conversion, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 13, 2001, as granted the plaintiff's motion pursuant to CPLR 3042(d) and 3126(3) to impose a penalty upon them to the extent of directing them to serve a bill of particulars as to their affirmative defenses within 20 days and conditionally struck their answer, and (2) from a judgment of the same court, entered July 25, 2001, which, after an inquest, is in favor of the plaintiff and against them in the principal sum of $35,748.50.
Doyle Broumand, LLP, Bronx, N.Y. (Michael B. Doyle of counsel), for appellants.
Novick, Edelstein, Lubell, Reisman, Wasserman Leventhal, P.C., Yonkers, N.Y. (Lawrence Schiro of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law and as a matter of discretion, so much of the order as granted the plaintiff's motion to the extent of directing the defendants to serve a bill of particulars as to their affirmative defenses within 20 days and conditionally struck their answer is vacated, the motion is denied, the answer is reinstated, the plaintiff's demand for a bill of particulars as to the defendants' affirmative defenses is stricken, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The Supreme Court improvidently exercised its discretion in conditionally striking the defendants' answer. The defendants timely interposed an objection to the plaintiff's demand for a bill of particulars as to their affirmative defenses. Although the Supreme Court found that such objection was "unwarranted," the interposition of an objection does not rise to the level of willful, contumacious, or deliberate conduct necessary to impose the sanction of striking a party's pleading (see Viteritti v. Gelfand, 289 A.D.2d 566; Lavi v. Lavi, 256 A.D.2d 602).
Moreover, the plaintiff's demand for a bill of particulars as to the defendants' affirmative defenses was palpably improper insofar as it sought evidentiary material or information on which the defendants did not bear the burden of proof (see Marsala v. Weinraub, 208 A.D.2d 689; Scalone v. Phelps Mem. Hosp. Ctr., 184 A.D.2d 65). Accordingly, the defendants' failure to move for a protective order against such demand did not warrant the penalty of striking their answer (see Marsala v. Weinraub, supra; Bouton v. County of Suffolk, 125 A.D.2d 620). Therefore, the judgment is reversed, so much of the order as granted the plaintiff's motion to the extent of directing the defendants to serve a bill of particulars as to their affirmative defenses within 20 days and conditionally struck their answer is vacated, the motion is denied, the answer is reinstated, the plaintiff's demand for a bill of particulars as to the defendants' affirmative defenses is stricken, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings.
The defendants' remaining contentions have been rendered academic in light of our decision herein.
SANTUCCI, J.P., SCHMIDT, TOWNES and COZIER, JJ., concur.