Burgess v. Rains-ford

—In a medical malpractice action to recover damages for wrongful death, the defendants Patricia R. Latorre, Janet Matarazzo, Catherine Kenny, "John and Jane Does Nos. 1-20”, and Mercy Hospital appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated August 9, 1994, as granted the plaintiffs’ motion to strike the answer insofar as interposed by the defendant Mercy Hospital, and (2) from an order of the same court, dated January 11, 1995, which, inter alia, denied their motion denominated as one for renewal and reargument. [400] Ordered that the appeal from the order dated January 11, 1995, and the appeal by the defendants Latorre, Matarazzo, Kenny, and "Doe” from the order dated August 9, 1994, are dismissed; and it is further, Ordered that the order dated August 9, 1994, is affirmed insofar as appealed from by the defendant Mercy Hospital; and it is further, Ordered that the plaintiffs are awarded one bill of costs payable by the defendants Patricia R. Latorre, Janet Matarazzo, Catherine Kenny, "John and Jane Does Nos. 1-20”, and Mercy Hospital. The record shows that the failure of the appellant Mercy Hospital to comply with the court’s order to meet the plaintiffs’ discovery demands was willful, contumacious, and in bad faith. Under the circumstances, the court properly granted the plaintiffs’ motion to strike its answer pursuant to CPLR 3126 (see, e.g., Rodriguez v All Am. Auto Rental, 179 AD2d 632; Ahroni v City of New York, 175 AD2d 789; Dauria v City of New York, 127 AD2d 459, 460; Sawh v Bridges, 120 AD2d 74, 78). The appeal from the denial of the appellants’ motion, denominated as a motion for renewal and reargument, must be dismissed. The motion is actually one for reargument as it was not based upon new facts unavailable at the time of the original motion (see, e.g., Huttner v McDaid, 151 AD2d 547). The denial of a motion for reargument is not appealable (see, e.g., Huttner v McDaid, supra; Mgrditchian v Donato, 141 AD2d 513). We note that since the order dated August 9, 1994, did not dismiss the answer insofar as asserted by the defendants Latorre, Matarazzo, Kenny, and "Doe”, they are not aggrieved by that order and may not appeal therefrom (see, CPLR 5511). Balletta, J. P., Pizzuto, Joy and Altman, JJ., concur.