| Palomba v Schindler El. Corp. |
| 2010 NY Slip Op 05373 [74 AD3d 1037] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Krista Palomba, Respondent, v Schindler ElevatorCorporation, Appellant. |
—[*1] Stacey A. Storino, LaGrangeville, N.Y. (Thomas M. Desimone of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from (1) anorder of the Supreme Court, Putnam County (O'Rourke, J.), dated September 2, 2009, whichgranted the plaintiff's motion pursuant to CPLR 3126 to strike its answer unless it responded tothe plaintiff's discovery demands by a date certain, and (2) an order of the same court datedNovember 2, 2009, which denied its motion for leave to renew and/or reargue the plaintiff'smotion.
Ordered that the appeal from so much of the order dated November 2, 2009, as denied thatbranch of the defendant's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument (seeBarany v Barany, 71 AD3d 613, 614 [2010]); and it is further,
Ordered that the order dated September 2, 2009, is reversed, on the facts and in the exerciseof discretion, and the plaintiff's motion pursuant to CPLR 3126 to strike the defendant's answerunless it responded to the plaintiff's discovery demands by a date certain is denied; and it isfurther,
Ordered that the appeal from so much of the order dated November 2, 2009, as denied thatbranch of the defendant's motion which was for leave to renew is dismissed as academic in lightof our determination on the appeal from the order dated September 2, 2009; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motionpursuant to CPLR 3126 to strike the defendant's answer. A court may strike an answer as asanction if a defendant "refuses to obey an order for disclosure or wilfully fails to discloseinformation which the court finds ought to have been disclosed" (CPLR 3126; see Mazza v Seneca, 72 AD3d754 [2010]). However, the drastic remedy of striking an answer is inappropriate absent aclear showing that the defendant's failure to [*2]comply withdiscovery demands was willful or contumacious (see Moray v City of Yonkers, 72 AD3d 766 [2010]; Pirro Group, LLC v One Point St.,Inc., 71 AD3d 654, 655 [2010]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2010]).
Applying those principles to the matter at bar, the plaintiff failed to make such a showing.The plaintiff moved to strike the answer when the action was only approximately five monthsold, and the only existing court-ordered deadline for responding to discovery demands, whichhad been set forth in the preliminary conference order, had expired only four days earlier.Moreover, the defendant proffered a reasonable excuse for its delay in responding. Dillon, J.P.,Santucci, Balkin, Belen and Sgroi, JJ., concur.