Novikov v. Maimonides Medical Center

Apr 22, 2008
Versions:50 A.D.3d 987
856 N.Y.S.2d 654

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 27, 2007, which denied their motion pursuant to CPLR 3126 to strike the answer and amended answer of the defendant Maimonides Medical Center for failure to provide certain disclosure and (2), as limited by their brief, from so much of an order of the same court dated September 28, 2007 as denied that branch of their motion which was for leave to renew their prior motion.

Ordered that the order dated February 27, 2007 is affirmed; and it is further,

Ordered that the order dated September 28, 2007 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant Maimonides Medical Center.

The drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see CPLR 3126 [3]; Joe DeMartino Mason Contrs. & Sons, Inc. v Main Plaza Realty Co., 44 AD3d 716, 716-717 [2007]; Gateway Tit. & Abstract, Inc. v Your Home Funding, Inc., 40 AD3d 919 [2007]; Nieves v City of New York, 35 AD3d 557, 558 [2006]; Faulkner v City of New York, 32 AD3d 452 [2006]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 643-644 [2005]; Cestaro v Chin, 20 AD3d 500, 501-502 [2005]). On the record presented, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion pursuant to CPLR 3126 to strike the answer and amended answer of the defendant Maimonides Medical Center (hereinafter Maimonides) as they did not establish that Maimonides willfully and contumaciously failed to comply with discovery orders or demands, or delayed the progress of discovery.

The plaintiffs’ remaining contentions are without merit.

Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur.