Appeal and cross appeal from a judgment of the District Court of Nassau County, Fourth District (Alfred D. Cooper, Sr., J.), dated December 22, 2005. The judgment, following an inquest, awarded plaintiff the principal sum of $8,000. The judgment brings up for review an order dated December 9, 2004, which granted plaintiff's motion to the extent of conditionally striking defendant's answer, and the order dated June 28, 2005, which granted plaintiff's motion for judgment to the extent of setting the matter down for an inquest for defendant's failure to comply with the December 9, 2004 order.

Judgment reversed without costs, orders dated December 9, 2004 and June 28, 2005 vacated, plaintiff's motion for judgment in his favor upon defendant's default in appearing at a court-ordered deposition is denied and matter remanded to the court below for determination de novo of plaintiff's motion for the imposition of sanctions pursuant to CPLR 3126.

Plaintiff, after issue was joined, served defendant with a notice of discovery and inspection, and a first set of interrogatories. Following defendant's failure to timely respond, the parties entered into a court-ordered stipulation wherein defendant agreed to respond to the first set of interrogatories and discovery on or before a specified date. Following service of defendant's responses, plaintiff rejected same, inter alia, as being defective. Subsequently, plaintiff moved pursuant to CPLR 3126 for the imposition of sanctions based on defendant's failure to comply with the court-ordered stipulation. By order dated December 9, 2004, the court (Christopher G. Quinn, J.) conditionally granted plaintiff's motion to the extent of striking defendant's answer unless defendant, within a specified period of time, appeared at plaintiff's counsel's office for an examination before trial of "plaintiff." The court had apparently erred in indicating it was plaintiff rather than defendant who was to be deposed. Neither plaintiff nor defendant sought correction and/or clarification of the court's order or reargument thereof. [*2]Defendant did not appear at plaintiff's counsel's office to conduct the court-ordered deposition. Plaintiff then moved for an order granting judgment in his favor upon defendant's default and setting the matter down for an inquest. By order dated June 28, 2005, the court (Christopher G. Quinn, J.) granted plaintiff's motion. Following an inquest, judgment was awarded in favor of plaintiff in the principal sum of $8,000.

An appeal from a judgment brings up for review all non-final orders affecting the judgment (see CPLR 5501 [a]; Cubetta v York Intl. Corp., 30 AD3d 557 [2006]), including orders granting or denying motions to strike an answer (see Hillside Equities v UHF Apts., 297 AD2d 704 [2002]; Jones v Bodian, 172 AD2d 495 [1991]; Rubin v Oboler, 9 AD2d 958 [1959]).

"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has refused to obey an order or willfully fails to disclose information which should be disclosed is a matter within the discretion of the court. . . . Absent an improvident exercise of discretion, a determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed" (Jaffe v Hubbard, 299 AD2d 395, 396 [2002]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Here, the court's order of December 9, 2004, which granted plaintiff's motion to strike defendant's answer, without first determining the validity of plaintiff's objections to his responses to the interrogatories, unless defendant appeared for an examination of "plaintiff," exceeded the scope of its discretion.

In view of the foregoing, the judgment should be reversed, the orders vacated, plaintiff's motion for judgment denied, defendant's answer reinstated and the matter remanded to the court below for determination de novo of plaintiff's motion for the imposition of sanctions pursuant to CPLR 3126.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: February 7, 2007