Selamaj v. City of New York

Appellate Division of the Supreme Court of New York

Selamaj v. City of New York

257 A.D.2d 616, 684 N.Y.S.2d 559, 1999 N.Y. App. Div. LEXIS 323

Appellate Division of the Supreme Court of the State of New York·Decided January 19, 1999·Published·Cited by 4 cases

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), entered January 13, 1998, which denied their motion to strike the defendants’ answer pursuant to CPLR 3126 (3).

Ordered that the order is affirmed, with costs.

It is well settled that the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful, contumacious, or in bad faith (see, CPLR 3126; Parish Constr. Corp. v Franlo Tile, 215 AD2d 545; Harris v City of New York, 211 AD2d 663). In this case, the plaintiffs failed to make such a showing. Notably, the defendants’ delay in complying with a pre-calendar order was relatively minor and did not cause the plaintiffs to suffer any prejudice (see, Hocevar v Honig Indus. Diamond Wheel, 172 AD2d 588). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), entered January 13, 1998, which denied their motion to strike the defendants’ answer pursuant to CPLR 3126 (3).

Ordered that the order is affirmed, with costs.

It is well settled that the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful, contumacious, or in bad faith (see, CPLR 3126; Parish Constr. Corp. v Franlo Tile, 215 AD2d 545; Harris v City of New York, 211 AD2d 663). In this case, the plaintiffs failed to make such a showing. Notably, the defendants’ delay in complying with a pre-calendar order was relatively minor and did not cause the plaintiffs to suffer any prejudice (see, Hocevar v Honig Indus. Diamond Wheel, 172 AD2d 588). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.

Selamaj v. City of New York, 257 A.D.2d 616, 684 N.Y.S.2d 559, 1999 N.Y. App. Div. LEXIS 323 (N.Y. Ct. App. 1999).

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