| Weissman v 20 E. 9th St. Corp. |
| 2008 NY Slip Op 01061 [48 AD3d 242] |
| February 7, 2008 |
| Appellate Division, First Department |
| Joel Weissman, as Trustee of the Faye Levine Supplemental NeedsTrust and as Executor of Lillian H. Levine, Deceased, et al.,Appellants-Respondents, v 20 East 9th Street Corporation,Respondent-Appellant. |
—[*1] Hoey, King, Toker & Epstein, New York City (David S. Kasdan of counsel) and Richman &Fingerhut, P.C., New York (Lauren N. Kosiba of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 19, 2007,which granted defendant's motion to dismiss the complaint based on plaintiff Faye Levine'sfailure to comply with two prior orders directing her to submit to a medical examination bydefendant's psychiatrist, and severed defendant's counterclaims seeking ejectment of theincapacitated person and related relief with leave to prosecute in Civil Court, unanimouslymodified, on the law, the facts and in exercise of discretion, to grant the motion to the extent ofprecluding plaintiffs from presenting evidence at trial of plaintiff Faye Levine's medicalcondition, or of defendant's alleged discrimination based on that condition, unless Faye Levine isproduced for a medical examination by defendant's psychiatrist within 90 days of service of copyof this order, in which event the motion for sanctions denied and the complaint andcounterclaims reinstated, and otherwise affirmed, without costs.
Supreme Court, as we have encouraged trial courts to do (see Figdor v City of New York, 33 AD3d 560 [2006]), activelysupervised disclosure and employed a proactive approach in dealing with plaintiffs' failure toproduce plaintiff Faye Levine for an independent medical examination by defendant'spsychiatrist. Nevertheless, under the unusual circumstances of this case, we are constrained tomodify the order dismissing the complaint.
The remedy of striking a complaint pursuant to CPLR 3126 for failure to comply with adiscovery order is appropriate only where the moving party demonstrates that the nondisclosurewas willful, contumacious or due to bad faith (see Cespedes v Mike & Jac TruckingCorp., 305 AD2d 222 [2003]; Christian v City of New York, 269 AD2d 135 [2000];McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1995]). Here, plaintiff FayeLevine failed to appear for an independent medical examination by defendant's psychiatrist dueto significant mental illness, not willful or contumacious behavior. Accordingly, a sanction shortof dismissal of the [*2]complaint, but one commensurate withFaye Levine's failure to appear for an independent medical examination (see Grabow v BlueEyes, 123 AD2d 155 [1986]; see generally Connors, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR C3126:8), is warranted if Faye Levine fails toappear for such an examination as directed above. Concur—Andrias, J.P., Nardelli,Williams and McGuire, JJ.