McAllister v. City of New York

Appellate Division of the Supreme Court of New York

McAllister v. City of New York

248 A.D.2d 598, 669 N.Y.S.2d 918

Appellate Division of the Supreme Court of the State of New York·Decided March 23, 1998·Published·Cited by 2 cases

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated November 14, 1996, which denied his motion pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, in effect, for summary judgment in his favor on the issue of liability.

Ordered that the order is affirmed, with costs.

The record demonstrates that the parties engaged in substantial discovery. The defendants made significant efforts to comply fully with disclosure demands and a preliminary conference order, and a witness apparently became unavailable during the plaintiffs own substantial delay in making a substitution in accordance with CPLR 1015 for the death of the infant plaintiffs mother and natural guardian. Under these circumstances, we discern no improvident exercise of discretion [599] in the Supreme Court’s determination that the defendants’ conduct during disclosure did not constitute willful or contumacious noncompliance warranting the imposition of a sanction pursuant to CPLR 3126 (see, e.g., Harris v City of New York, 211 AD2d 663; Lestingi v City of New York, 209 AD2d 384).

We have considered the plaintiffs remaining contention and find it to be without merit.

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated November 14, 1996, which denied his motion pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, in effect, for summary judgment in his favor on the issue of liability.

Ordered that the order is affirmed, with costs.

The record demonstrates that the parties engaged in substantial discovery. The defendants made significant efforts to comply fully with disclosure demands and a preliminary conference order, and a witness apparently became unavailable during the plaintiffs own substantial delay in making a substitution in accordance with CPLR 1015 for the death of the infant plaintiffs mother and natural guardian. Under these circumstances, we discern no improvident exercise of discretion [599] in the Supreme Court’s determination that the defendants’ conduct during disclosure did not constitute willful or contumacious noncompliance warranting the imposition of a sanction pursuant to CPLR 3126 (see, e.g., Harris v City of New York, 211 AD2d 663; Lestingi v City of New York, 209 AD2d 384).

We have considered the plaintiffs remaining contention and find it to be without merit.

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.

McAllister v. City of New York, 248 A.D.2d 598, 669 N.Y.S.2d 918 (N.Y. Ct. App. 1998).

Pincite

248 A.D.2d 598 (McAllister v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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