| Ayala v Lincoln Med. & Mental Health Ctr. |
| 2012 NY Slip Op 01195 [92 AD3d 542] |
| February 16, 2012 |
| Appellate Division, First Department |
| Benita Ayala, Appellant, v Lincoln Medical & MentalHealth Center et al., Respondents. Benita Ayala, Appellant, v Avinash Jadhav et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered July 8, 2010, which,in this consolidated medical malpractice action, to the extent appealed from as limited by thebriefs, denied plaintiff's motion to strike defendants' answers, unanimously affirmed, withoutcosts.
Striking the answers would have been inappropriate, given the lack of a clear showing thatdefendants' failure to comply with discovery orders was willful, contumacious, or in bad faith (see Delgado v City of New York, 47AD3d 550 [2008]). Indeed, there is evidence in the record that defendants attempted tocomply with their disclosure obligations, but did not possess the requested discovery pertainingto plaintiff's total knee replacement surgery (see Scott v King, 83 AD3d 510, 511 [2011]; see also Harris vCity of New York, 211 AD2d 662, 663 [1995]). In light of the strong preference that mattersbe decided on the merits (Banner v NewYork City Hous. Auth., 73 AD3d 502, 503 [2010]), the court providently exercised itsdiscretion in [*2]imposing a less drastic sanction (seePalmenta v Columbia Univ., 266 AD2d 90, 91 [1999]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Friedman, J.P., Sweeny, Renwick, DeGrasse and RomÁn, JJ.