| Polsky v Tuckman |
| 2011 NY Slip Op 05037 [85 AD3d 750] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Sharon Celia Polsky, Appellant, v Scott Tuckman et al.,Respondents. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Feinman, J.), entered April 4, 2008, which granted thedefendants' motion pursuant to CPLR 3126 to strike the complaint.
Ordered that the order is reversed, on the facts and in the exercise of discretion, and thedefendants' motion to strike the complaint is denied.
The defendants' motion pursuant to CPLR 3126 to strike the complaint upon the plaintiff'sfailure to appear at a court-ordered deposition should have been denied. A court may strike apleading as a sanction if a plaintiff "refuses to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed" (CPLR 3126; see Mazza v Seneca, 72 AD3d 754[2010]). However, the drastic remedy of striking a complaint is inappropriate absent a clearshowing that the plaintiff's failure to comply with discovery demands was willful andcontumacious (see Comprehensive Careof N.Y., P.C. v Manuel A. Romero, P.C., 56 AD3d 510 [2008]; Anonymous v Duane Reade, Inc., 49AD3d 479, 480 [2008]; Resnick vSchwarzkopf, 41 AD3d 573 [2007]). Here, the defendants failed to make a clearshowing that the plaintiff's conduct was willful and contumacious (see Palomba v Schindler El. Corp., 74AD3d 1037 [2010]; Anonymous vDuane Reade, Inc., 49 AD3d 479 [2008]). Mastro, J.P., Florio, Leventhal, Belen andCohen, JJ., concur.