| Moray v City of Yonkers |
| 2010 NY Slip Op 03087 [72 AD3d 766] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Angela Moray, Appellant, v City of Yonkers et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Darius P.Chafizadeh of counsel), for respondent City of Yonkers. Katz & Rychik, P.C., New York, N.Y. (Abe M. Rychik and Andrew N. Fluger of counsel),for respondent Ahmed Hakki.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from(1) an order of the Supreme Court, Westchester County (Smith, J.), dated March 5, 2009, which,in effect, granted that branch of the motion of the defendant Ahmed Hakki pursuant to CPLR3126 which was to dismiss the cause of action to recover damages for intentional infliction ofemotional distress insofar as asserted against him, and (2) an order of the same court dated June9, 2009, which granted her motion to settle the transcript of the proceedings held in theabove-entitled action on December 31, 2008.
Ordered that the appeal from the order dated June 9, 2009, is dismissed, as the plaintiff is notaggrieved by that order; and it is further,
Ordered that the order dated March 5, 2009, is reversed, on the facts and in the exercise ofdiscretion, and that branch of the motion of the defendant Ahmed Hakki pursuant to CPLR 3126which was to dismiss the cause of action to recover damages for intentional infliction ofemotional distress is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The drastic remedy of striking a pleading or dismissal pursuant to CPLR 3126 for failure tocomply with court-Ordered disclosure should be granted only where the conduct of the resistingparty is shown to be willful and contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d808 [2009]; Mei Yan Zhang vSantana, 52 AD3d 484, 485 [2008]; Xina v City of New York, 13 AD3d 440, 441 [2004]; Frias vFortini, 240 AD2d 467 [1997]). The record does not support the dismissal of the cause ofaction to recover damages for intentional infliction of emotional distress pursuant to CPLR 3126,as there was no evidence [*2]of willful or contumacious conductin connection with the plaintiff's failure to authorize the release of the records at issue (see Simpson v City of New York, 10AD3d 601, 602-603 [2004]; Lerner v Knot, 201 AD2d 466 [1994]). Skelos, J.P.,Santucci, Lott and Sgroi, JJ., concur.
[Recalled and vacated by 76 AD3d 618.]