Cruzatti v. St. Mary's Hospital

193 A.D.2d 579, 597 N.Y.S.2d 457, 1993 N.Y. App. Div. LEXIS 4531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1993
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bellard, J.), dated February 19, 1991, which denied their motion to strike the defendant Gonzalo Oria’s answer, and granted his cross motion for an extension of time to appear for an examination before trial.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs’ motion to strike the answer of the defendant Gonzalo Oria for his failure to appear for depositions (see, CPLR 3126 [3]). It is well settled that an action should be resolved on the merits wherever possible, and the harsh remedy of the striking of a pleading should not be employed without a showing of a deliberate or willful refusal to disclose. Moreover, a trial court is vested with broad discretion in supervising disclosure, and its determination that sanctions are not warranted must not be disturbed absent an improvident exercise of that discretion (see, Ahroni v City of New York, 175 AD2d 789; Miller v Duffy, 126 AD2d 527). There is no adequate basis to disturb the Supreme Court’s determination. We note that while the respondent, a resident of Florida, was unable to appear on the date that the other depositions in the case were scheduled, he offered two alternate dates to conclude his deposition prior thereto and prior to the time that plaintiffs moved to strike his answer. Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.