| Sullivan v Nigro |
| 2008 NY Slip Op 01136 [48 AD3d 454] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Brian Sullivan et al., Appellants, v Bayda Nigro et al.,Respondents, et al., Defendants. (And Another Title.) |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (SusanWeihs Darlington of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 16, 2007, which deniedtheir motion, in effect, to enforce a self-executing order of the same court (Cohalan, J.), datedJuly 26, 2006, striking the answer of the defendant Huntington Hospital Associates unlessdiscovery demands were complied with.
Ordered that the order is affirmed, with costs.
Actions should be resolved on the merits wherever possible, and the nature and degree of thepenalty to be imposed upon noncompliance with discovery demands is a matter of discretionwith the court (see Espinal v City of New York, 264 AD2d 806 [1999]; Soto v City ofLong Beach, 197 AD2d 615 [1993]; Cruzatti v St. Mary's Hosp., 193 AD2d 579[1993]). In addition, the drastic remedy of striking an answer is inappropriate absent a clearshowing that the failure to comply with discovery demands is willful and contumacious (seeHarris v City of New York, 211 AD2d 663, 664 [1995]). The moving party must clearlydemonstrate that the failure to comply was willful and contumacious (see Pascarelli v City of New York, 16AD3d 472, 473 [2005]).
In light of the substantial compliance with the discovery demands, the Supreme Court [*2]providently exercised its discretion in determining that the remedyof striking the answer of the defendant Huntington Hospital Association was not warranted (see Newell v Ford Motor Credit Co.,36 AD3d 675 [2007]; Zouev v Cityof New York, 32 AD3d 850, 851 [2006]). Contrary to plaintiffs' contention, the doctrineof law of the case does not apply to the Supreme Court's prior order dated July 26, 2006 (see Kswani v Lutheran Med. Ctr., 27AD3d 424, 425 [2006]; Clark vGreat Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511 [2005]). Mastro, J.P., Lifson,Covello and Angiolillo, JJ., concur.