Wilberforce v. Brody Truck Rental, Inc.

—Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 8, 1993, which ordered that the answer of defendants was not stricken, and declared that the insurance policy of United States Fidelity & Guaranty Insurance Company is excess to the primary insurance policy and that said policy and company shall pay any judgment over and above the primary $100,000 policy, unanimously modified on the law, to delete the declaration as to the excessive coverage and otherwise affirmed, without costs.

The court’s refusal to dismiss the answer was a proper exercise of its discretion (see, Sawh v Bridges, 120 AD2d 74, 77-78, appeal dismissed 69 NY2d 852). There was no showing of "a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation” and the "drastic sanction of unconditionally striking an answer” (Forman v Jamesway Corp., 175 AD2d 514, 515-516), particularly since defense counsel had provided plaintiff with a letter from the excess carrier admitting to coverage. Nor are sanctions warranted against plaintiff’s counsel herein under 22 NYCRR part 130. Finally, we vacate that portion of the court’s order as to excess insurance which was without a legal basis. Concur —Sullivan, J. P., Carro, Rosenberger and Wallach, JJ.