Resnick v Schwarzkopf

2007 NYSlipOp 05249

June 12, 2007

Appellate Division, Second Department

As corrected through Wednesday, August 15, 2007

Donna Resnick, Respondent, v Harry Schwarzkopf, Appellant.

—[*1]Goldberg Segalla, LLP, Mineola, N.Y. (Brian McElhenny and Marianne Arcieri of counsel), for appellant.

Peter R. Price, Westhampton Beach, N.Y., for respondent.

In an action, inter alia, to recover damages for personal injuries, injury to property, and emotional distress, the defendant appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 18, 2006, which denied his motion pursuant to CPLR 3126 to dismiss the complaint.

Ordered that the order is affirmed, with costs.

"[T]he drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the party is shown to be willful and contumacious" (Russo v Tolchin, 35 AD3d 431, 434 [2006]; see Prappas v Papadatos, 38 AD3d 871 [2007]; Jenkins v City of New York, 13 AD3d 342, 343 [2004]). The Supreme Court providently exercised its discretion in declining to dismiss the complaint since the plaintiff substantially, albeit tardily, provided the requested disclosure, and her conduct was not willful and contumacious (see Mawson v Historic Props., LLC, 30 AD3d 480 [2006]; Lombardo v St. Francis Hosp. Rehabilitation Servs., 16 AD3d 385 [2005]). Schmidt, J.P., Krausman, Goldstein, Covello and Angiolillo, JJ., concur.