Stephens v. Stephens

146 A.D.2d 625, 538 N.Y.S.2d 454, 1989 N.Y. App. Div. LEXIS 400

Opinion

— In an action to recover unpaid salary and commissions, the plaintiff appeals from an order of the Supreme Court, Nassau County (Collins, J.), dated March 19, 1987, which granted his motion to strike the defendant’s answer only to the extent of conditionally striking the answer unless the defendant complied with the plaintiff’s discovery demands, or alternatively, supplied an affidavit to the effect that specific documents did not exist, within 30 days after service upon him of a copy of the order.

Ordered that the order is affirmed, without costs or disbursements; the defendant’s time within which to comply with the plaintiff’s discovery demands or to supply his affidavit is extended until 30 days after service upon him of a copy of this decision and order with notice of entry.

The record supports the determination of the Supreme Court, Nassau County, that the defendant did not willfully and contumaciously resist disclosure (see generally, Sawh v Bridges, 120 AD2d 74). Accordingly, the Supreme Court did not err in only conditionally granting the plaintiff’s motion to strike the defendant’s answer. Mangano, J. P., Bracken, Eiber, Spatt and Sullivan, JJ., concur.