Pacheco v New York City Hous. Auth.

2008 NY Slip Op 01316 [48 AD3d 534]

February 13, 2008

Appellate Division, Second Department

As corrected through Wednesday, April 16, 2008

Luz Pacheco, Appellant, v New York City HousingAuthority, Respondent. (And a Third-Party Action.)

—[*1]Cascione, Purcigliotti & Galluzzi, P.C., New York, N.Y. (Michael J. Galluzzi ofcounsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B. Prystowsky and HarrySteinberg of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order ofthe Supreme Court, Kings County (Kurtz, J.), dated May 11, 2006, which granted her motion tostrike the defendant's answer only to the extent of directing the defendant to provide certaindisclosure, and (2) an order of the same court (Kramer, J.) dated January 5, 2007, which grantedher motion, in effect, for leave to take an unlimited deposition of the defendant's employee onlyto the extent of modifying the time and subject matter parameters of the questions that could beasked at the deposition, which parameters had been set in a prior order of the same court(Kramer, J.) dated August 16, 2006.

Ordered that on the Court's own motion, the notice of appeal from the order dated January 5,2007, is treated as an application for leave to appeal, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,

Ordered that the orders are affirmed, with one bill of costs.

Contrary to the plaintiff's contentions, the Supreme Court did not improvidently exercise itsdiscretion in refusing to strike the defendant's answer as a sanction under CPLR 3126 (seeByrne [*2]v City of New York, 301 AD2d 489, 490 [2003];Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370 [2000]; Vancott v GreatAtl. & Pac. Tea Co., 271 AD2d 438 [2000]). The plaintiff failed to make a clear showingthat the failure to comply with discovery demands was willful and contumacious (see Goldstein v Kingsbrook Jewish Med.Ctr., 39 AD3d 816, 817 [2007]).

Contrary to the plaintiff's contention, the order dated January 5, 2007 struck a reasonable andsensible balance between the need for full disclosure and the prevention of abuse. "Thesupervision of disclosure and the setting of reasonable terms and conditions therefor rests withinthe sound discretion of the trial court (see Matter of U. S. Pioneer Elecs. Corp. [Nikko Elec.Corp.], 47 NY2d 914, 916 [1979]), and, absent an improvident exercise of that discretion, itsdetermination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628,629 [1999]). Rivera, J.P., Florio, Carni and Balkin, JJ., concur.