Opinion
December 16, 1997
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Plaintiffs' appeal from the above-described interlocutory order must be dismissed by reason of the subsequent entry of judgment dismissing the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). While we previously denied a motion by the defendant to dismiss the appeal, we did so by reason of our expectation that there would be an appeal from the final judgment bringing up for review the issues raised in the interlocutory appeal ( see, CPLR 5501 [a] [1]). However, the appeal from the final judgment has never been perfected and as the time for doing so has come and gone and indeed been exceeded by many months during which there has been no request for enlargement, we believe it fair to conclude that, contrary to our expectations, the appeal from the final judgment has been abandoned. This being the case, it would appear clear that there exists no means by which the challenged interlocutory disposition might be placed before this Court, and, accordingly, that there is no point to the further retention of the appeal from that disposition on our docket.
Respecting the cross-appeal, it suffices to note that while the striking of a pleading pursuant to CPLR 3126 is a harsh and drastic remedy, it is nevertheless generally within the discretion of the motion court to determine an appropriate penalty for a party's deliberate failure to respond to a court order of disclosure ( Rich Rich Trading Co. v. Theodore, Ltd., 225 A.D.2d 307). Here, defendant's repeated, adamantine refusal to submit to court-ordered examination by plaintiffs' expert provided ample justification — particularly under the circumstances of this case in which defendant had herself placed her psychiatric condition in issue — for the motion court's dismissal of defendant's counterclaims.
Concur — Murphy, P.J., Sullivan, Wallach, Nardelli and Tom, JJ.