| Comprehensive Care of N.Y., P.C. v Manuel A. Romero, P.C. |
| 2008 NY Slip Op 08695 [56 AD3d 510] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Comprehensive Care of New York, P.C.,Respondent, v Manuel A. Romero, P.C., et al., Appellants. |
—[*1] Roberts & Fidler, P.C., Brooklyn, N.Y. (Lewis A. Fidler of counsel), forrespondent.
In an action, inter alia, to recover no-fault medical payments, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated July 10, 2007, as denied those branches of their cross motion which wereto dismiss the complaint pursuant to CPLR 3211 (a) (3), to strike the complaint pursuant toCPLR 3126 for failure to comply with certain discovery demands, and to amend the captionpursuant to CPLR 305 (c) to delete the name of Manuel A. Romero, individually, as a defendant.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion which was to amend the caption pursuant to CPLR 305 (c) to deletethe name of Manuel A. Romero, individually, as a defendant and substituting therefor a provisiongranting that branch of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying that branch of the crossmotion which was to strike the complaint pursuant to CPLR 3126 for failure to comply withcertain discovery demands. The determination whether to strike a pleading lies within the sounddiscretion of the trial court (see CPLR 3126 [3]; Walter B. Melvin, Architects, LLC v 24 Aqueduct Lane Condominium,51 AD3d 784, 785 [2008]). However, the drastic remedy of striking a pleading is notappropriate absent a clear showing that the failure to comply with discovery demands was willful[*2]and contumacious (see CPLR 3126 [3]; Anonymous v Duane Reade, Inc., 49AD3d 479, 480 [2008]; JoeDeMartino Mason Contrs. & Sons, Inc. v Main Plaza Realty Co., 44 AD3d 716, 717[2007]; Resnick v Schwarzkopf, 41AD3d 573 [2007]). Here, the defendants failed to make a clear showing that the plaintiff'sfailure to comply with certain discovery demands was willful and contumacious.
However, the Supreme Court should have granted that branch of the cross motion which wasto amend the caption pursuant to CPLR 305 (c) to delete the name of Manuel A. Romero,individually, as a defendant. In a prior order dated November 4, 2002, Romero's motion todismiss the complaint insofar as asserted against him for lack of personal jurisdiction wasgranted.
The defendants' remaining contention is without merit. Rivera, J.P., Florio, Angiolillo andMcCarthy, JJ., concur.