Lombardo v. St. Francis Hospital Rehabilitation Services

16 A.D.3d 385, 790 N.Y.S.2d 405, 2005 N.Y. App. Div. LEXIS 2320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated April 23, 2004, as granted the defendants’ motion pursuant to CPLR 3126 to strike the complaint for failure to comply with discovery demands.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in striking the complaint absent a clear showing that the plaintiffs failure to comply with discovery demands was willful and contumacious (see CPLR 3126; Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]; Harris v City of New York, 211 AD2d 663 [1995]). The record supports a finding that the plaintiff substantially, albeit tardily, complied with the defendants’ discovery demands and that her conduct was not willful and contumacious (see Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., supra; Payne v Rouse Corp., 269 AD2d 510 [2000]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.