O'Connor v. Root

284 A.D.2d 979, 726 N.Y.S.2d 895, 2001 N.Y. App. Div. LEXIS 5799

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiffs’ motion for a default judgment based upon defendants’ failure to comply with the parties’ agreed-upon discovery schedule. That “harsh remedy * * * is generally not warranted ‘absent a showing that the noncomplying party’s conduct was willful or contumacious’ ” (Gaylord Bros. v RND Co., 134 AD2d 848, quoting Sawh v Bridges, 120 AD2d 74, 78, appeal dismissed 69 NY2d 852). Here, there was no showing that defendants’ noncompliance was willful or contumacious (see, Monaco v Camie-Campbell, Inc., 256 AD2d 1214, 1216, lv dismissed in part and denied in part 93 NY2d 887). The court also properly exercised its discretion, “in the interest of elementary fairness,” in relieving defendants from the consequences of the stipulation made by their former attorney (Matter of Way v Town of Poughkeepsie, 75 AD2d 602, 604; see, Teitelbaum Holdings v Gold, 48 NY2d 51, 54-55). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Default Judgment.) Present — Green, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.