Caban v. Rzak Development Inc.

132 A.D.3d 937, 18 N.Y.S.3d 358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2015
• Docket: 2013-10655
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), dated October 15, 2013, as denied their separate motions to dismiss the complaint pursuant to CPLR 3126 for the plaintiff’s failure to comply with orders directing disclosure, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion to strike the defendants’ answers pursuant to CPLR 3126 for their failure to submit to examinations before trial.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Under the circumstances of this case, in the absence of any evidence of willful or contumacious conduct, the denial of the motions and the cross motion was a provident exercise of discretion (see Oller v Liberty Lines Tr., Inc., 111 AD3d 903 [2013]; Hoi Wah Lai v Mack, 89 AD3d 990 [2011]).

The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.

Hall, J.P., Austin, Sgroi and Hinds-Radix, JJ., concur.