Tantaro v. All My Children, Inc.

133 A.D.3d 491, 19 N.Y.S.3d 159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2015
• Docket: 16157 157893/12
• Status: Published

Opinion

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered January 6, 2014, which granted plaintiff’s motion to strike defendants’ answer for failing to comply with discovery to the extent of marking the parties’ deposition dates as final, unanimously affirmed, without costs.

Plaintiff failed to establish that defendants’ alleged failure to comply with disclosure obligations was willful, contumacious or in bad faith (see Perez v New York City Tr. Auth., 73 AD3d 529 [2010]). Given the fact that the record demonstrates that the delays in discovery were caused by both parties, it cannot be said that Supreme Court abused its discretion in determining that striking defendants’ answer was inappropriate and instead granting plaintiff’s motion to strike to the extent of imposing the lesser sanction of marking the deposition dates as final (see DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581 [1st Dept 2011]; Islar v New York City Bd. of Educ., 64 AD3d 405 [1st Dept 2009]). Concur — Gonzalez, P.J., Sweeny, ManzanetDaniels and Kapnick, JJ.