Opinion
March 27, 2008.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 16, 2007, which, in an action for personal injuries sustained in a fall on defendant's premises, granted plaintiffs motion pursuant to CPLR 3126 to strike defendant's answer to the extent of deeming the issue of notice resolved in plaintiffs favor, unanimously reversed, on the facts, without costs, the motion to strike denied, and the stricken portions of the answer reinstated. Appeal from order, same court and Justice, entered January 16, 2007, which adjourned plaintiffs motion to strike and, insofar as appealed from, directed a surreply from defendant's attorney, unanimously dismissed, without costs.
Before: Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ.
The order resolving against defendant the issue of notice was unwarranted. Plaintiff did not show that defendant's delay in complying with her demand for the last known home address of one of defendant's former employees, who had already been deposed by plaintiff while still in defendant's employ, was part of a pattern of deliberate, contumacious delay ( see Tsai v Hernandez, 284 AD2d 116, 117). The second order on appeal does not affect a substantial right and is not otherwise appealable as of right ( see Marriott Intl. v Lonny's Hacking Corp., 262 AD2d 10, 11).