Myung Sum Suh v Jung Ja Kim

2008 NY Slip Op 04664 [51 AD3d 883]

May 20, 2008

Appellate Division, Second Department

As corrected through Wednesday, July 16, 2008

Myung Sum Suh et al., Appellants, v Jung Ja Kim et al.,Respondents.

—[*1]Sim & Park, LLP, New York, N.Y. (Sang J. Sim and Andrew Park of counsel), forappellants.

Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), forrespondents.

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), entered July11, 2007, as granted that branch of the defendants' motion which was pursuant to CPLR 3126 tostrike the complaint and dismiss the action.

Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and that branch of the defendants' motion which was pursuant to CPLR3126 to strike the complaint and dismiss the action is denied.

The Supreme Court improvidently exercised its discretion in striking the complaint, as therewas no clear showing that the plaintiffs' failure to comply with certain discovery demands andcourt-ordered discovery was willful or contumacious (see CPLR 3126; Manko v Lenox Hill Hosp., 44 AD3d1014 [2007]; Mawson v HistoricProps., LLC, 30 AD3d 480, 481 [2006]; Lombardo v St. Francis Hosp. Rehabilitation Servs., 16 AD3d 385,386 [2005]). The record supports a finding that the plaintiffs substantially, albeit tardily,complied with the requested disclosure, and that their conduct was not willful or contumacious(see Manko v Lenox Hill Hosp., 44AD3d 1014 [2007]; Mawson v Historic Props., LLC, 30 AD3d at 481; Lombardov St. Francis Hosp. Rehabilitation Servs., 16 AD3d at 386). Rivera, J.P., Covello, Angiolilloand McCarthy, JJ., concur.