Robbins v. Navistar International Transportation Corp.

224 A.D.2d 912, 638 N.Y.S.2d 525, 1996 N.Y. App. Div. LEXIS 1511

Opinion

—Crew III, J.

Appeal from an order of the Supreme Court (Plumadore, J.), entered July 17, 1995 in Saratoga County, which, inter alia, denied plaintiffs’ motion for a conditional order rendering judgment in favor of plaintiffs based upon the failure of defendant Navistar International Transportation Corporation to comply with certain discovery demands.

Plaintiff Francis E. Robbins was rendered a quadriplegic when his International Harvester tractor slipped out of park and ran over him. As a consequence, Robbins and his wife commenced this action against, among others, defendant Navistar International Transportation Corporation, formerly known as International Harvester Company (hereinafter defendant), sounding in negligence, breach of warranty and strict products liability. During the course of the litigation, Supreme Court rendered a discovery order on May 24, 1994 requiring production of certain documents relating to the tractor in question. On November 4, 1994, plaintiffs moved for an order of judgment by default pursuant to CPLR 3126 (3) by reason of defendant’s alleged willful failure to comply with the aforesaid order. Supreme Court denied the motion, and this appeal ensued.

"We affirm. Supreme Court was vested with broad discretion to determine the motion herein, and "the harsh remedy of an order striking a party’s answer is justifiable only where the failure to comply with a discovery order is deliberate or contumacious” (Shapiro v Rose Textiles Indus., 195 AD2d 935). As the record before us does not reflect that defendant has willfully refused to comply with the discovery order in question, Supreme Court properly denied plaintiffs’ motion in this regard.

Mercure, J. P., Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.