| Voutsinas v Voutsinas |
| 2007 NY Slip Op 06986 [43 AD3d 1156] |
| September 25, 2007 |
| Appellate Division, Second Department |
| George Voutsinas, Jr., Respondent, v Byron Voutsinas,Appellant. |
—[*1] Dollinger, Gonski & Grossman, Carle Place, N.Y. (Joshua N. Krellen and Floyd G.Grossman of counsel), for respondent.
In an action to recover damages for defamation, the defendant appeals from an order of theSupreme Court, Suffolk County (Doyle, J.), dated February 16, 2006, which granted theplaintiff's motion pursuant to CPLR 3126 to strike his answer for failure to provide disclosureand denied, as academic, his motions, inter alia, to compel the plaintiff to provide discovery andset the matter down for an inquest on damages.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion is denied, andthe matter is remitted to the Supreme Court, Suffolk County, for a determination of thedefendant's motions.
While the Supreme Court properly determined that the defendant had not yet provided someof the mandated disclosure in this action, the drastic remedy of striking the defendant's answerwas not warranted because there was no clear showing that his failure to do so was willful andcontumacious (see CPLR 3126; Gateway Tit. & Abstract, Inc. v Your Home Funding, Inc., 40 AD3d919 [2007]; Tine v CourtviewOwners Corp., 40 AD3d 966 [2007]; Torres v Lowinger, 12 AD3d 363 [2004]). In light of ourdetermination, the defendant's motions to compel further discovery are no longer academic.Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a determination ofthe defendant's motions (see Gomez v New York City Tr. Auth., 291 AD2d 431 [2002]).Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.