Adzhiashvili v. Joy-Lud Distributors, Int'l., Inc.

283 A.D.2d 361, 725 N.Y.S.2d 39, 2001 N.Y. App. Div. LEXIS 6581

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered April 12, 2000, which denied defendant’s motion to vacate the order of the same court and Justice, entered on or about August 31, 1999, striking its answer based on its failure to comply with an interim discovery order and its counsel’s failure to appear at a discovery related conference, unanimously reversed, on the law and the facts, with costs, the motion granted and the answer reinstated.

The penalty of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith. (See, Rosario v New York City Hous. Auth., 272 AD2d 105; Pyfrom v Tishman Constr. Co., 270 AD2d 24.) Here it cannot be said that defendant’s failure to answer the first 10 questions was a willful failure to disclose where defendant received two sets of interrogatories dated the same date, one of which did not include the disputed 10 questions. Further the sanction was improper inasmuch as defendant made partial disclosure and explained that the deficiency was due to difficulty in obtaining documents from Russia. Concur — Williams, J. P., Tom, Mazzarelli, Lerner and Rubin, JJ.