Manko v. Lenox Hill Hospital

Oct 30, 2007
Versions:44 A.D.3d 1014
844 N.Y.S.2d 414

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 17, 2006, which, in effect, granted that branch of the defendant‘s motion which was pursuant to CPLR 3126 to strike the complaint and dismiss the action.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, and that branch of the motion which was pursuant to CPLR 3126 to strike the complaint and dismiss the action is denied.

The Supreme Court improvidently exercised its discretion in striking the complaint absent a clear showing that the plaintiff‘s failure to comply with court-ordered disclosure was willful and contumacious (see CPLR 3126; Mawson v Historic Props., LLC, 30 AD3d 480, 481 [2006]; Lombardo v St. Francis Hosp. Rehabilitation Servs., 16 AD3d 385, 386 [2005]; Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414, 415 [2000]). The record supports a finding that the plaintiff, who was proceeding pro se, substantially, albeit tardily, complied with the requested disclosure, and that her conduct was not willful and contumacious (see Resnick v Schwarzkopf, 41 AD3d 573 [2007]; Mawson v Historic Props., LLC, 30 AD3d 480, 481 [2006]; Lombardo v St. Francis Hosp. Rehabilitation Servs., 16 AD3d 385, 386 [2005]).

Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.