Bank of New York v. Hyland

Motions for reargument or, in the alternative, for leave to appeal to the Court of Appeals and for other relief denied. Memorandum: At the request of the trial court, defendants seek, inter alia, a clarification of our order modifying the order of the trial court [130 AD2d 942]. Defendants’ motion is based upon a letter from the trial court to the attorneys which states that, contrary to our modification, it did not grant defendants leave to seek consolidation. In view of the language of the order appealed from, "[I]t is hereby * * * ordered that Plaintiffs’ motion to strike defendants’ counter-claims be, and the same hereby is, granted, with leave to defendants to reassert the same by commencing an independent action * * * and, to move for joint trial or consolidation with the within action” (emphasis added), it is difficult to see how such statement could be made. With respect to the paragraph of the order which we deleted, the basis for our modification, as our memorandum states, is that defendants had not moved for disclosure sanctions and thus plaintiff was not on notice and the court’s finding of willful disobedience was not supported by the record. Present — Callahan, J. P., Denman, Boomer, Pine and Lawton, JJ.