Opinion
April 30, 1998
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).
Although appellant denominated its motion as one to vacate its default in not opposing plaintiff's earlier motion to strike its answer, the IAS Court explicitly stated, and indeed appellant now explicitly argues in its reply brief, that plaintiff's earlier motion, resulting in the January 5, 1995 order, was not granted on default but on the merits, for failure to comply with a prior disclosure order. If that was the case, then appellant's instant motion to vacate the prior order was "in actuality, one to reargue" that order, which was denied by the IAS Court, rendering the order on appeal nonappealable ( Federation of Puerto Rican Orgs. v. Mateo, 235 A.D.2d 326, lv dismissed 90 N.Y.2d 844). In any event, assuming that the order on appeal effectively granted a timely motion for reargument, and, upon reargument, adhered to the January 5, 1995 order, we would affirm, inferring willful and contumacious conduct from appellant's failure to respond to two discovery demands and to comply with three court orders directing it to furnish documents, and rejecting appellant's claim of law office failure attributable to personnel shortages and budgetary cuts in the absence of any indication of efforts to avoid or minimize the delay ( cf., Ferrara v. Guardino, 164 A.D.2d 932, 933) or to alert the court in any meaningful way of its difficulties in procuring the demanded documents ( see, Periphery Loungewear v. Kantron Roofing Corp., 214 A.D.2d 438).
Concur — Sullivan, J.P., Ellerin, Rubin, Williams and Andrias, JJ.