| Banner v New York City Hous. Auth. |
| 2010 NY Slip Op 04051 [73 AD3d 502] |
| May 11, 2010 |
| Appellate Division, First Department |
| Lamont Banner, an Infant, by His Mother and Natural Guardian,Jacqueline Banner, et al., Appellants, v New York City Housing Authority,Respondent. |
—[*1] Cullen and Dykman LLP, Brooklyn (Joseph Miller of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered November 27,2009, which, inter alia, denied plaintiffs' motion to strike defendant's answer for noncompliancewith disclosure orders, on condition that defendant produce an employee for deposition by acertain date, unanimously affirmed, without costs.
The drastic sanction of striking a pleading is inappropriate absent a clear showing that thefailure to comply with discovery directives was willful, contumacious or the result of bad faith(see Delgado v City of New York,47 AD3d 550 [2008]; Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222[2003]). "[E]ven [in cases] where the proffered excuse is less than compelling, there is a strongpreference in our law that matters be decided on their merits"(Catarine v Beth Israel Med.Ctr., 290 AD2d 213, 215 [2002]).
The record supports the motion court's finding that defendant demonstrated that it ultimatelyattempted to comply with its disclosure obligations and that its conduct "was not wilful orcontumacious, but rather that it reflected delays which regrettably are typical of litigations withthe Housing Authority in this Court." The refusal to strike defendant's answer was within thecourt's broad discretion in the supervision of disclosure (Rosen v Corvalon, 309 AD2d723 [2003]). Concur—Tom, J.P., Sweeny, Moskowitz, DeGrasse and Manzanet-Daniels,JJ.