Ayala v. Lincoln Medical & Mental Health Center

92 A.D.3d 542, 938 N.Y.2d 437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2012
• Status: Published

Opinion

Striking the answers would have been inappropriate, given the lack of a clear showing that defendants’ failure to comply with discovery orders was willful, contumacious, or in bad faith (see Delgado v City of New York, 47 AD3d 550 [2008]). Indeed, there is evidence in the record that defendants attempted to comply with their disclosure obligations, but did not possess the requested discovery pertaining to plaintiffs total knee replacement surgery (see Scott v King, 83 AD3d 510, 511 [2011]; see also Harris v City of New York, 211 AD2d 662, 663 [1995]). In light of the strong preference that matters be decided on the merits (Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]), the court providently exercised its discretion in imposing a less drastic sanction (see Palmenta v Columbia Univ., 266 AD2d 90, 91 [1999]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Friedman, J.P., Sweeny, Renwick, DeGrasse and Román, JJ.