| Hutchinson v Langer |
| 2010 NY Slip Op 01927 [71 AD3d 735] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Shirley Hutchinson, Respondent, v Glen Langer et al.,Defendants, and Morris Rashal et al., Appellants. |
—[*1] Brian F. Ward, Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for injury to property, the defendants MorrisRashal and Maris Development, Ltd., appeal, as limited by their brief, from so much of an orderof the Supreme Court, Kings County (F. Rivera, J.), dated March 26, 2009, as denied theirmotion pursuant to CPLR 3126, among other things, to dismiss the complaint insofar as assertedagainst them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The drastic remedy of dismissing a complaint based on a plaintiff's failure to comply withcourt-ordered disclosure should be granted only where there is a clear showing that the plaintiff'sconduct was willful and contumacious (see ACME ANC Corp. v Read, 55 AD3d 854, 855 [2008]; Brown v Astoria Fed. Sav., 51 AD3d961, 962 [2008]; Suazo-Alvarez vNordlaw, LLC, 48 AD3d 670 [2008]; Robinson v Pediatric Assoc. of IrwinAve., 307 AD2d 1029, 1030 [2003]). Here, the Supreme Court did not improvidentlyexercise its discretion in denying the appellants' motion pursuant to CPLR 3126, among otherthings, to dismiss the complaint insofar as asserted against them. The record supports a findingthat "the plaintiff substantially, albeit tardily, provided the requested disclosure, and her conductwas not willful and contumacious" (Resnick v Schwarzkopf, 41 AD3d 573 [2007]; see ACMEANC Corp. v Read, 55 AD3d at 855; Mawson v Historic Props., LLC, 30 AD3d 480, 481 [2006]).
The appellants' remaining contentions are without merit. Dillon, J.P., Miller, Balkin,Leventhal and Austin, JJ., concur.