Pulsone v. North Shore Towers Apartments Inc.

29 A.D.3d 883, 814 N.Y.S.2d 540

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated January 6, 2005, as denied that branch of his motion which was to strike the answer.

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

The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful and contumacious (see CPLR 3126 [3]; Jenkins v City of New York, 13 AD3d 342 [2004]). Here, the plaintiff failed to make such a showing. Further, the plaintiff did not demonstrate that the alleged loss of certain documents was the result of intentional or negligent spoliation (see Dennis v City of New York, 18 AD3d 599, 600 [2005]; Mylonas v Town of Brookhaven, 305 AD2d 561, 563 [2003]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was to strike the answer. Adams, J.P., Rivera, Skelos and Lifson, JJ., concur.