| Delarosa v Besser Co. |
| 2011 NY Slip Op 06016 [86 AD3d 588] |
| July 19, 2011 |
| Appellate Division, Second Department |
| Eduardo Delarosa, Respondent, v Besser Company et al.,Appellants, et al., Defendants. |
—[*1] Davis, Saperstein & Salomon, P.C., New York, N.Y. (Michelle S. Russo, P.C., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants Besser Company,Besser Lithibar, Besser International Sales Co., and Lithibar Matik, Inc., appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), datedJune 11, 2010, as denied that branch of their motion which was to dismiss the complaint pursuantto CPLR 3126.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of theappellants' motion which was to dismiss the complaint pursuant to CPLR 3126 (3), since therewas no clear showing that the plaintiff's failure to comply with the appellants' discovery demandwas willful and contumacious (see CPLR 3126; ACME ANC Corp. v Read, 55 AD3d 854, 855 [2008]; Myung Sum Suh v Jung Ja Kim, 51AD3d 883 [2008]; Manko v LenoxHill Hosp., 44 AD3d 1014 [2007]; Resnick v Schwarzkopf, 41 AD3d 573 [2007]). The plaintiffsubstantially, albeit tardily, complied with the discovery demand (see Mironer v City of New York, 79AD3d 1106, 1108 [2010]; ACME ANC Corp. v Read, 55 AD3d at 855; Resnick v Schwarzkopf, 41 AD3d573 [2007]). Rivera, J.P., Angiolillo, Eng, Chambers and Sgroi, JJ., concur.