Hanson v. City of New York

227 A.D.2d 217, 642 N.Y.S.2d 272, 1996 N.Y. App. Div. LEXIS 5172

Opinion

Order, Supreme Court, New York County (Jane Solomon, J.), entered April 18, 1995, which denied defendant’s motion to vacate the order, same court and Justice, entered February 24, 1995, which granted plaintiff’s motion to strike defendant’s answer for failure to comply with discovery demands, is unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, defendant’s motion is granted, the order is vacated and the answer is reinstated. Appeal from the February 24, 1995 order is unanimously dismissed without costs, as moot.

While it is true that the nature and degree of the penalty to be imposed for failure to comply with a discovery order is generally a matter left to the sound discretion of the trial court (see, Cherry v Herbert & Co., 212 AD2d 203, 209; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892), the penalty of striking an answer for failure to disclose is extreme and should be levied only where the failure has been willful or contumacious (see, Jeffcoat v Andrade, 205 AD2d 374; Stathoudakes v Kelmar Contr. Corp., 147 AD2d 690).

In the matter at bar, even though the City delayed in complying with discovery demands, the court abused its discretion by striking the City’s answer without according defendant a second chance to furnish the information it had allegedly not turned over, thereby effectively barring the City from defending the lawsuit on its merits.

We have considered plaintiff’s remaining arguments and find them to be without merit. Concur — Ellerin, J. P., Wallach, Ross, Nardelli and Tom, JJ.