Hill v. Douglas Elliman-Gibbons & Ives

256 A.D.2d 31, 680 N.Y.S.2d 848, 1998 N.Y. App. Div. LEXIS 12918

Opinion

—Order, Supreme Court, New York County (Emily Goodman, J.), entered May 28, 1998, which, after an evidentiary hearing, denied plaintiff’s motion to strike the answer of defendants-respondents Douglas Elliman-Gibbons & Ives and Insignia Financial Group, Inc., unanimously affirmed, without costs.

In ruling upon plaintiff’s motion to strike defendants-respondents’ pleadings, the motion court properly inquired, not merely as to whether there had been spoliation of evidence, but also as to whether defendants-respondents’ failure to comply with discovery orders had been willful, contumacious, or effected in bad faith (see, Orlando v Arcade Cleaning Corp., 253 AD2d 362; cf., Squitieri v City of New York, 248 AD2d 201). The court’s conclusion that plaintiff had not met her burden as movant (see, Forman v Jamesway Corp., 175 AD2d 514, 515) to demonstrate defendants-respondents’ willful noncompliance with their discovery obligations, and accordingly had not demonstrated her right to the drastic relief requested, did not constitute an improvident exercise of discretion (see, Dauria v City of New York, 127 AD2d 459, 460). Concur — Milonas, J. P., Ellerin, Williams and Andrias, JJ.