Citibank (S.D.) N.A. v. Johnson

206 A.D.2d 942, 615 N.Y.S.2d 180, 1994 N.Y. App. Div. LEXIS 7892

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff contends that it was error for Supreme Court to dismiss its complaint pursuant to CPLR 3126 for refusing to comply with an order for disclosure. We agree. The record establishes that defendant served a demand for the production of documents and that plaintiff was unable to satisfy that demand fully because it did not possess some of the documents requested. The parties subsequently sought orders of preclusion arising from their discovery demands and an order was entered that directed the parties to comply with the various demands for discovery. When plaintiff failed to provide all the documents pursuant to defendant’s demand, defendant moved pursuant to CPLR 3126 for sanctions or dismissal of the complaint. In a reply affidavit, an officer of plaintiff stated that plaintiff had made a diligent search of its files and had provided defendant with all the requested documents that it possessed. Given those circumstances, plaintiff did not refuse to obey an order for disclosure or willfully fail to disclose information (CPLR 3126), and defendant’s motion should have been denied. Conse quently, we modify the order appealed from by deleting the first ordering paragraph, by denying defendant’s motion to dismiss pursuant to CPLR 3126, and by reinstating the complaint.

We have reviewed the remaining contention of plaintiff and find it to be without merit. (Appeal from Order of Erie County Court, D’Amico, J.—Dismiss Action.) Present—Denman, P. J., Pine, Lawton, Wesley and Doerr, JJ.