Opinion
August 15, 1994
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the appeal by Josef Levi and the cross appeal against Josef Levi are dismissed, without costs or disbursements, and it is declared that that order is a nullity as to him; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
The appeal and cross appeal must be dismissed insofar as they concern Josef Levi. This defendant died on May 1, 1992, and no executor had been appointed to represent his estate as of August 5, 1992, the date of the order appealed from. Therefore, that order is a nullity as against an unrepresented deceased former party (see, Monteleone v. Hickey, 174 A.D.2d 940; Bossert v. Ford Motor Co., 140 A.D.2d 480; Condy v. Alpren, 123 A.D.2d 737; Wisdom v. Wisdom, 111 A.D.2d 13). However, the order dated December 31, 1991, which was made upon the defendants' failure to comply with a discovery order of the same court dated November 15, 1991, was issued during Josef Levi's lifetime and thus, the finding of liability, as against this deceased defendant, was not vacated by the order on appeal.
As to the surviving parties, the order is affirmed insofar as reviewed. The defendants' repeated, willful discovery defaults, in violation of an order dated November 15, 1991, directing discovery, warranted the sanction of striking their answer. Their belated, meritless summary judgment motion did not immunize them from the dismissal of their answer under the circumstances of this case (see, Laverne v. Incorporated Vil. of Laurel Hollow, 18 N.Y.2d 635, 638; Town of Southampton v. Salten, 186 A.D.2d 796). Indeed, the striking of their answer was especially appropriate in this case, because the defendants' discovery refusals contributed to a delay during which Josef Levi died, thus permanently preventing his deposition. Accordingly, the court did not improvidently exercise its discretion by striking the answer.
Nor was it improvident for the court to vacate the damages portion of its order dated December 31, 1991, since the damages were not readily ascertainable (see, Reynolds Sec. v Underwriters Bank Trust Co., 44 N.Y.2d 568, 572). Rather, an inquest is more appropriate to ascertain the plaintiffs' actual damages. Bracken, J.P., Miller, Joy and Altman, JJ., concur.