26 A.D.3d 187
N.Y. App. Div.
2006

GABRIEL MORILLO MARTINEZ et al., Appellants, v NEW YORK PRESBYTERIAN HOSPITAL, Also Known as COLUMBIA PRESBYTERIAN MEDICAL CENTER, et al., Respondents.

Supreme Court, Appellate Division, First Department, New York

807 NYS2d 876

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 1, 2005, which, inter alia, denied plaintiffs’ motion to strike the answers of defendants Roston and Alicea or to preclude them from offering evidence at trial with regard to liability, unanimously affirmed, without costs.

The court’s restraint was appropriate because the failure of Roston and Alicea to comply with prior orders had not been willful or contumacious (Frye v City of New York, 228 AD2d 182 [1996]; Dauria v City of New York, 127 AD2d 459 [1987]). The court properly exercised its discretion in not imposing sanctions and in granting these defendants’ cross motion for an extension of time to appear for depositions, in accordance with the preliminary conference order. Concur—Andrias, J.P., Saxe, Friedman, Catterson and Malone, JJ.