| Manko v Lenox Hill Hosp. |
| 2007 NY Slip Op 08199 [44 AD3d 1014] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Nella Manko, Appellant, v Lenox Hill Hospital,Respondent. |
—[*1] Garson Gerspach DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen and Lauren J.Daniels of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals froman order of the Supreme Court, Kings County (Steinhardt, J.), dated February 17, 2006, which, ineffect, granted that branch of the defendant's motion which was pursuant to CPLR 3126 to strikethe complaint and dismiss the action.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and that branch of the motion which was pursuant to CPLR 3126 to strike the complaint anddismiss the action is denied.
The Supreme Court improvidently exercised its discretion in striking the complaint absent aclear showing that the plaintiff's failure to comply with court-ordered disclosure was willful andcontumacious (see CPLR 3126; Mawson v Historic Props., LLC, 30 AD3d 480,481 [2006]; Lombardo v St. Francis Hosp. Rehabilitation Servs., 16 AD3d 385, 386[2005]; Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414, 415[2000]). The record supports a finding that the plaintiff, who was proceeding pro se,substantially, albeit tardily, complied with the requested disclosure, and that her conduct was notwillful and contumacious (see Resnick v Schwarzkopf, 41 AD3d 573 [2007];Mawson v Historic Props., LLC, 30 AD3d 480, 481 [2006]; Lombardo v St. FrancisHosp. Rehabilitation Servs., 16 AD3d 385, 386 [2005]). Crane, J.P., Ritter, Fisher, Covelloand Dickerson, JJ., concur.