O'Connor v. Root
284 A.D.2d 979
| N.Y. App. Div. | 2001

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiffs’ motion for a default judgment based upon defendants’ failure to comply with the parties’ agreed-upon discovery schedule. That “harsh remedy * * * is generally not warranted ‘absent a showing that the noncomplying party’s conduct was willful or contumacious’ ” (Gaylord Bros. v RND Co., 134 AD2d 848, quoting Sawh v Bridges, 120 AD2d 74, 78, appeal dismissed 69 NY2d 852). Here, there was no showing that defendants’ noncompliance was willful or contumacious (see, Monaco v Camie-Campbell, Inc., 256 AD2d 1214, 1216, lv dismissed in part and denied in part 93 NY2d 887). The court *980also properly exercised its discretion, “in the interest of elementary fairness,” in relieving defendants from the consequences of the stipulation made by their former attorney (Matter of Way v Town of Poughkeepsie, 75 AD2d 602, 604; see, Teitelbaum Holdings v Gold, 48 NY2d 51, 54-55). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Default Judgment.) Present — Green, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.