| Hoi Wah Lai v Mack |
| 2011 NY Slip Op 08563 [89 AD3d 990] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Hoi Wah Lai et al., Respondents, v Charles Mack et al.,Defendants, and Maria Codreanu et al., Appellants. |
—[*1] Gurfein Douglas, LLP, New York, N.Y. (Preston J. Douglas of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, the defendants MariaCodreanu and New York Hospital of Queens appeal (1) from an order of the Supreme Court, QueensCounty (O'Donoghue, J.), entered November 18, 2010, which granted the plaintiffs' motion pursuant toCPLR 3126 to strike their answer for failure to comply with certain discovery demands, and (2), aslimited as their brief, from so much of an order of the same court entered April 12, 2011, as deniedtheir cross motion for leave to renew and reargue their opposition to the plaintiff's motion.
Ordered that the appeal from so much of the order entered April 12, 2011, as denied that branchof the cross motion which was for leave to reargue is dismissed, as no appeal lies from an orderdenying reargument (see Barany vBarany, 71 AD3d 613 [2010]), and the appeal from so much of the same order as deniedthat branch of the cross motion which was for leave to renew is dismissed as academic in light of ourdetermination on the appeal from the order entered November 18, 2010; and it is further,
Ordered that the order entered November 18, 2010, is reversed, on the facts and in the exercise ofdiscretion, and the motion pursuant to CPLR 3126 to strike the appellants' answer is denied; and it isfurther,
Ordered that one bill of costs is awarded to the appellants.
The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion pursuantto CPLR 3126 to strike the appellants' answer. A court may strike an answer as a sanction if adefendant "refuses to obey an order for disclosure or wilfully fails to disclose information which thecourt finds ought to have been disclosed" (CPLR 3126; see Thompson v Dallas BBQ, 84 AD3d 1221 [2011]; Mazza v Seneca, 72 AD3d 754[2010]). However, the drastic remedy of striking an answer is inappropriate absent a clear showing thatthe defendant's failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750[2011]; Moray v City [*2]of Yonkers, 76 AD3d 618 [2010]; Pirro Group, LLC v One Point St., Inc., 71AD3d 654 [2010]; Dank v SearsHolding Mgt. Corp., 69 AD3d 557 [2010]). Here, the plaintiffs failed to make such ashowing. At the time the plaintiffs moved to strike the appellants' answer, the action had been pendingfor less than five months, the appellants had not missed any court-ordered deadlines, and, in fact, theappellants had already served a response to the plaintiffs' notice to produce (see Palomba v Schindler El. Corp., 74AD3d 1037, 1038 [2010]). In addition, the motion was not supported by an affirmation of goodfaith, as required by 22 NYCRR 202.7 (seeQuiroz v Beitia, 68 AD3d 957, 960 [2009]; Dennis v City of New York, 304 AD2d611, 613 [2003]). Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.