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WAYNE BRANDES, ET AL., plaintiffs-respondents, v. PIRNIE-BAKER, J.V., ET AL., defendants, BAKER ENGINEERING NY, INC., defendant third-party plaintiff-respondent; FISCHBACH MOORE, INC., third-party defendant-appellant.

ORDERED that the appeal from the order dated May 22, 2001, is dismissed; and it is further,

ORDERED that the order dated April 10, 2001, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

Dismissal of a party's pleading pursuant to CPLR 3126 is within the discretion of the Supreme Court where, as here, the party's repeated failure to comply with orders of the court directing disclosure, without excuse, supports an inference that the failure to provide disclosure was willful and contumacious (see, Ranfort v. Peak Tours, 250 A.D.2d 747; Frias v. Fortini, 240 A.D.2d 467; Kubacka v. Town of North Hempstead, 240 A.D.2d 374).

The appellant's motion, denominated as one for leave to renew and reargue was, in effect, in fact a motion only for leave to reargue (see, Polanco v. Duran, 278 A.D.2d 397, 398; Desola v. Mads, 213 A.D.2d 445), the denial of which is not appealable (see, Polanco v. Duran, supra).

ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and CRANE, JJ., concur.

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BRANDES v. PIRNIE-BAKER
(Nov 26, 2001)