Frye v. City of New York

Appellate Division of the Supreme Court of New York

Frye v. City of New York

228 A.D.2d 182, 643 N.Y.2d 90, 643 N.Y.S.2d 90, 1996 N.Y. App. Div. LEXIS 6381

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 1996

StatusPublished

Cited by23 cases

This text of 228 A.D.2d 182 (Frye v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frye v. City of New York, 228 A.D.2d 182, 643 N.Y.2d 90, 643 N.Y.S.2d 90, 1996 N.Y. App. Div. LEXIS 6381 (N.Y. Ct. App. 1996).

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Opinion

The IAS Court did not improvidently exercise its discretion in declining to strike defendants’ answer pursuant to CPLR 3126 for noncompliance with prior disclosure orders inasmuch as plaintiff failed to establish that defendants’ failure to appear at court-ordered examinations before trial was willful or contumacious, and since defendants offered a reasonable excuse for their good-faith, albeit belated, efforts to comply (Rossi v Lin, 189 AD2d 868; Bassett v Bando Sangsa Co., 103 AD2d 728). Although the record indicates that defendants were less than diligent in meeting court deadlines, these derelictions did not warrant imposition of the drastic sanction of striking their [183]*183answer absent a clear showing that the conduct was willful or contumacious (Bako v V. T. Trucking Co., 143 AD2d 561, 562; Dauria v City of New York, 127 AD2d 459). Concur—Murphy, P. J., Wallach, Rubin, Williams and Mazzarelli, JJ.

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The IAS Court did not improvidently exercise its discretion in declining to strike defendants’ answer pursuant to CPLR 3126 for noncompliance with prior disclosure orders inasmuch as plaintiff failed to establish that defendants’ failure to appear at court-ordered examinations before trial was willful or contumacious, and since defendants offered a reasonable excuse for their good-faith, albeit belated, efforts to comply (Rossi v Lin, 189 AD2d 868; Bassett v Bando Sangsa Co., 103 AD2d 728). Although the record indicates that defendants were less than diligent in meeting court deadlines, these derelictions did not warrant imposition of the drastic sanction of striking their [183]*183answer absent a clear showing that the conduct was willful or contumacious (Bako v V. T. Trucking Co., 143 AD2d 561, 562; Dauria v City of New York, 127 AD2d 459). Concur—Murphy, P. J., Wallach, Rubin, Williams and Mazzarelli, JJ.

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Bluebook (online)

228 A.D.2d 182, 643 N.Y.2d 90, 643 N.Y.S.2d 90, 1996 N.Y. App. Div. LEXIS 6381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frye-v-city-of-new-york-nyappdiv-1996.

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