Opinion
March 8, 1996
Appeal from the Supreme Court, Kings County, Aronin, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Defendant has appealed from an order denying without prejudice his cross motion for summary judgment dismissing the complaint in this legal malpractice action. Although the order is appealable by defendant ( see, Venetucci v Venetucci, 151 A.D.2d 472), the cross motion was properly denied because defendant failed to make a prima facie showing of entitlement to judgment as a matter of law ( see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). We also reject plaintiff's contention that Supreme Court erred in refusing to strike the answer based upon defendant's failure to submit to an examination before trial. Such drastic relief should be granted only where it is conclusively shown that the default was deliberate or contumacious ( see, CPLR 3126; Henry Rosenfeld, Inc. v Bower Gardner, 161 A.D.2d 374). Finally, in the absence of a showing of substantial prejudice to plaintiff, the court did not abuse its discretion in denying her motion to sever the third-party action ( see, CPLR 1010; Klein v City of Long Beach, 154 A.D.2d 346, 347).