| Iscowitz v County of Suffolk |
| 2008 NY Slip Op 06801 [54 AD3d 725] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Steven G. Iscowitz et al., Appellants, v County of Suffolket al., Defendants, and Town of Babylon, Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Rebecca K. Vainder and Michael G.Kruzynski of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), datedJuly 16, 2007, as denied their cross motion pursuant to CPLR 3126 to strike the answer of thedefendant Town of Babylon for failure to timely comply with discovery.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contentions, the Supreme Court properly denied their cross motionpursuant to CPLR 3126 to strike the Town of Babylon's answer for its belated disclosure ofcertain information sought in discovery. The plaintiffs waived any objection to the adequacy andtimeliness of the disclosure by filing a note of issue and certificate of readiness prior to movingpursuant to CPLR 3126 for the imposition of a discovery sanction (see Melcher v City of New York, 38AD3d 376, 377 [2007]; Escourse vCity of New York, 27 AD3d 319, 320 [2006]; Simpson v City of New York, 10 AD3d 601, 602 [2004];Brown v Veterans Transp. Co., 170 AD2d 638 [1991]; Levy v Wexler, 16 AD2d688 [1962]).
In any event, the plaintiffs did not make a clear showing of willful and contumacious conducton the part of the Town to warrant the drastic remedy of striking the answer (see e.g. Nieves v City of New York, 35AD3d 557, 558 [2006]; Simpson v City of New York, 10 AD3d at 602; Ahroni vCity of New York, 175 AD2d 789, 790 [1991]; Forman v Jamesway Corp., 175AD2d 514, 515-516 [1991]), nor did they demonstrate that they would be substantiallyprejudiced by the late disclosure. Skelos, J.P., Ritter, Florio and Carni, JJ., concur. [See2007 NY Slip Op 32187(U).]