In Cillo v. Resjefal Corp. (13 AD3d 292, 294, 787 NYS2d 269 [1st Dept 2004]), the infant plaintiff and his grandfather (who died) allegedly became violently ill after purportedly ingesting ground beef allegedly contaminated by E. coli bacteria.
The contaminated meat had been butchered and processed by defendant Iowa Beef Processing, distributed by defendant D.B. Brown, Inc., a meat wholesaler, and purchased from defendant Resjefal Corporation, which owned and operated a supermarket.
By order entered March 11, 2002, on plaintiffs' motion, D.B. Brown, Inc.'s answer was stricken "as to defenses and liability," for its failure to comply with an outstanding order pertaining to plaintiffs' discovery requests, and the order striking D.B. Brown, Inc.'s answer was affirmed on appeal. (Id. at 293.)
The Supreme Court then granted the motion of codefendants Iowa Beef Processing and Resjefal Corporation to preclude the assertion of any cross claims by Brown, interpreting the ruling striking the answer to include the striking of those cross claims.
The Appellate Division, First Department, reversed the Supreme Court's ruling, stating:
"This is a misreading of the order, which was intended only to benefit plaintiffs for Brown's obstructive conduct in failing to comply with their discovery demands. That part of the answer containing the cross claims was not at issue and those claims remain viable (see Vierya v. Briggs & Stratton Corp., 184 AD2d 766, 585 NYS2d 468 1992). Indeed, neither IBP nor Resjefal supported the motion to strike; nor were they in any way involved in the motion. Nor, contrary to their assertions on oral argument, are IBP and Resjefal prejudiced by allowing the cross claims to proceed. There is no showing in the record of any prejudice to either codefendant as a result of Brown's discovery defaults towards plaintiffs. Indeed, the striking of Brown's answer was, in large part, based on its failure to produce documents related to transactions between itself and Resjefal or IBP, documents which, as they relate to each of these defendants, respectively, are presumably in their possession." (Id. at 294.)
Cillo teaches that one must look to the circumstances giving rise to an order striking an answer to determine whether the cross claims are also stricken.