Fox v. Eastman Kodak Co.

275 A.D.2d 921, 714 N.Y.S.2d 249

Opinion

—Order unanimously reversed on the law and in the exercise of discretion without costs and motion denied on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry. Memorandum: The extreme sanction of dismissal is warranted only where there is a clear showing that plaintiff’s failure to comply with discovery demands was willful, contumacious or in bad faith (see, Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193; see also, Gadley v U.S. Sugar Co., 259 AD2d 1041, 1042). No such showing was made here. Rather, the record establishes that much of the delay in responding to defendant’s demands is attributable to illness and injury suffered by plaintiff’s counsel during the discovery process. Under the circumstances, we conclude that dismissal of the action is not warranted and that plaintiff should be afforded one final chance to comply with discovery (see, Adams v Deloreto, 272 AD2d 875; Kimmel v State of New York, 267 AD2d 1079, 1081). We therefore, in the exercise of our discretion, deny defendant’s motion to dismiss the action pursuant to CPLR 3126 on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry (see, Johnson v Brown, 242 AD2d 562, 563; Gamble v Anlynne, Inc., 199 AD2d 303). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Green, Hayes, Kehoe and Lawton, JJ.