Levy v. Manhattan & Bronx Surface Transit Operating Authority

In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County (Levine, J.), dated February 25, 1985, which granted plaintiffs’ motion to strike defendants’ affirmative defense as a sanction for failure to serve a timely bill of particulars in compliance with a prior disclosure order of the same court, dated October 30, 1984.

Order affirmed, with costs.

Initially, we note that the order is appealable (see, Marrocco v Marrocco, 90 AD2d 989). However, we cannot say that Special Term abused its discretion in imposing the sanction of striking the affirmative defense rather than issuing a conditional order of preclusion. Thompson, J. P., O’Connor, Rubin and Kunzeman, JJ., concur.