Tillman v. Metropolitan Suburban Bus Authority

265 A.D.2d 545, 696 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 10826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Burke, J.), dated September 16, 1998, which denied their motion to dismiss the complaint pursuant to CPLR 3126 for failure to provide disclosure.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court (see, Lavi v Lavi, 256 AD2d 602; Kubacka v Town of N. Hempstead, 240 AD2d 374; Herrera v City of New York, 238 AD2d 475). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the defendants’ motion to dismiss since there was no showing that the plaintiffs failure to comply with discovery was willful, contumacious, or in bad faith (see, Mohammed v 919 Park Place Owners Corp., 245 AD2d 351; Parish Constr. Corp. v Franlo Tile, 215 AD2d 545).Santucci, J. P., Joy, Friedmann and Gold-stein, JJ., concur.