Doone v. Reiser , 728 N.Y.S.2d 674 ( 2001 )

—In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from so much of (1) an order of the Supreme Court, Nassau County (Honorof, J.), dated May 23, 2000, as denied her cross motion to strike the defendant’s answer and to impose a sanction upon him, and (2) an order of the same court dated September 26, 2000, as, upon renewal, and upon granting that branch of her cross motion which was to impose a sanction upon the defendant, adhered to the determination insofar as it denied that branch of the cross motion which was to strike the defendant’s answer, and the defendant cross appeals, as limited by his brief, from so much of the order dated September 26, 2000, as granted that branch of the plaintiffs cross motion which was to impose a sanction upon him.

Ordered that the appeal from the order dated May 23, 2000, is dismissed, without costs or disbursements, as that order was superseded by the order dated September 26, 2000, made upon renewal; and it is further,

Ordered that the order dated September 26, 2000, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying the plaintiffs cross motion to strike the answer and imposing a sanction on the defendant (see, Peycke v Towne Bus Corp., 276 AD2d 474; Smith v New York Tel. Co., 235 AD2d 529; Cruzatti v St. Mary’s Hosp., 193 AD2d 579). Ritter, J. P., McGinity, Luciano and Feuerstein, JJ., concur.