Marrero v. City of New York

Oct 11, 2001
Versions:287 A.D.2d 298
731 N.Y.S.2d 361
2001 N.Y. App. Div. LEXIS 9361

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about July 7, 2000, which, to the extent appealed from, denied plaintiffs’ motion to strike defendants’ answer pursuant to CPLR 3126, unanimously affirmed, without costs.

In this medical malpractice/wrongful death action, the motion court properly exercised its discretion in denying plaintiffs’ motion to strike defendants’ answer since the record before the court did not justify the inference that defendants’ failure to complete discovery had been willful, contumacious or in bad faith (see, Tsai v Hernandez, 284 AD2d 116). Notably, the delay about which plaintiffs complain was initially attributable to their own actions and omissions. Indeed, it appears from the record that defendants made good faith efforts at completing discovery on or before the cut-off date imposed by the motion court in its conditional order dated March 23, 2000.

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Tom, J. P., Andrias, Wallach and Buckley, JJ.