Smith v. Bynum

Appellate Division of the Supreme Court of New York

Smith v. Bynum

260 A.D.2d 626, 687 N.Y.S.2d 272, 1999 N.Y. App. Div. LEXIS 4286

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 1999

StatusPublished

Cited by1 cases

This text of 260 A.D.2d 626 (Smith v. Bynum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Bynum, 260 A.D.2d 626, 687 N.Y.S.2d 272, 1999 N.Y. App. Div. LEXIS 4286 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated April 14, 1998, which denied their motion pursuant to CPLR 3126 to strike the defendants’ answer for failure to appear for depositions.

[627]*627Ordered that the order is affirmed, without costs or disbursements.

It is well established 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; Olmoz v Town of Fishkill, 258 AJD2d 447; Selamaj v City of New York, 257 AD2d 616). In this case, the plaintiffs failed to make such a showing.

We note that the plaintiffs have failed to establish their entitlement to disclosure of post-accident repairs (see, Watson v FHE Servs., 257 AD2d 618). O’Brien, J. P., Thompson, Krausman and Luciano, 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, Suffolk County (D’Emilio, J.), dated April 14, 1998, which denied their motion pursuant to CPLR 3126 to strike the defendants’ answer for failure to appear for depositions.

[627]*627Ordered that the order is affirmed, without costs or disbursements.

It is well established 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; Olmoz v Town of Fishkill, 258 AJD2d 447; Selamaj v City of New York, 257 AD2d 616). In this case, the plaintiffs failed to make such a showing.

We note that the plaintiffs have failed to establish their entitlement to disclosure of post-accident repairs (see, Watson v FHE Servs., 257 AD2d 618). O’Brien, J. P., Thompson, Krausman and Luciano, JJ., concur.

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Bluebook (online)

260 A.D.2d 626, 687 N.Y.S.2d 272, 1999 N.Y. App. Div. LEXIS 4286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-bynum-nyappdiv-1999.

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