Payne v. Rouse Corp.

269 A.D.2d 510, 704 N.Y.S.2d 484, 2000 N.Y. App. Div. LEXIS 1990

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Richmond County (Lebdwitz, J.), dated May 14, 1999, as denied their motion to dismiss the complaint pursuant to CPLR 3126 and their separate motion for sanctions and costs.

Ordered that the order is affirmed insofar as appealed from, with costs.

The striking of a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure is a drastic remedy and a motion to strike should be granted only where the conduct of the nonmoving party is shown to be willful, contumacious, or in bad faith. The Supreme Court properly declined to strike the complaint, finding that the plaintiffs generally provided the requested discovery and that their conduct was not willful, contumacious, or in bad faith (see, Lestingi v City of New York, 209 AD2d 384; McCarthy v Klein, 238 AD2d 552).

The defendants’ remaining contentions are without merit. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.