At page 343 Exercising discretion regarding striking an answer for discovery noncompliance4 citing casesdiscretion (see Byrne v City of New York, supra; Cruzatti v St. Mary’s Hosp., 193 AD2d 579 [1993]). Under the circumstances of this case, there was no clear…
- Resnick v. Schwarzkopf, 41 A.D.3d 573 (N.Y. App. Div. 2d Dep't 2007).publishedOrdered that the order is affirmed, with costs. “[T]he drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the party is shown to be wil…
- Russo v. Tolchin, 35 A.D.3d 431 (N.Y. App. Div. 2d Dep't 2006).publishedHowever, the drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious (see Royal…
- Calle v. Robert Champeau, Inc., 16 A.D.3d 535 (N.Y. App. Div. 2d Dep't 2005).publishedChampeau, was not warranted (see Jenkins v City of New York, supra at 343).
- Goldstein v. Kingsbrook Jewish Med. Ctr., 39 A.D.3d 816 (N.Y. App. Div. 2d Dep't 2007).publishedThe Supreme Court improvidently exercised its discretion in denying that branch of Bonnie Fradella’s motion which was to amend the caption to substitute her as the administratrix of the plaintiffs estate in the place of the deceased plaint…
At page 342 Supervising disclosure and sanctioning dismissal discretion3 citing cases“the supreme court is vested with broad discretion in supervising disclosure, and its determination that the sanction of dismissal is not warranted will not be disturbed absent an improvident exercise of that discretion”
- Step-Murphy v. B&B Bros. Real Est. Corp., 60 A.D.3d 841 (N.Y. App. Div. 2d Dep't 2009).published“The Supreme Court is vested with broad discretion in supervising disclosure, and its determination that the sanction of dismissal is not warranted will not be disturbed absent an improvident exercise of that discretion” (Jenkins v City of…
- Jean v. City of New York, 29 A.D.3d 524 (N.Y. App. Div. 2d Dep't 2006).publishedThe Supreme Court is vested with broad discretion in supervising disclosure, and its determination that the sanction of dismissal is not warranted will not be disturbed absent an improvident exercise of that discretion” (Jenkins v City of…
- Brandes v. North Shore Univ. Hosp., 22 A.D.3d 778 (N.Y. App. Div. 2d Dep't 2005).published“The Supreme Court is vested with broad discretion in supervising disclosure, and its determination that the sanction of dismissal is not warranted will not be disturbed absent an improvident exercise of that discretion”
Other citing cases
- Argo v. Queens Surface Corp., 58 A.D.3d 656 (N.Y. App. Div. 2d Dep't 2009).published
- Prappas v. Papadatos, 38 A.D.3d 871 (N.Y. App. Div. 2d Dep't 2007).published
v.
City of New York
In an action, inter alia, to recover damages for false arrest and malicious prosecution, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated March 10, 2004, as granted their motion to strike the defendants’ answer only to the extent of directing a further examination before trial and awarding an attorney’s fee and costs.
Ordered that the order is affirmed insofar as appealed from, with costs.
It is well settled that actions should be resolved on their merits whenever possible, and that the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see Simpson v City of New York, 10 AD 3d 601 [2004]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]; Traina v Taglienti, 6 AD3d 524 [2004]; 181 S. Franklin Assoc, v Y & R Assoc., 6 AD3d 594 [2004]; Byrne v City of New York, 301 AD2d 489 [2003]) . The Supreme Court is vested with broad discretion in supervising disclosure, and its determination that the sanction of dismissal is not warranted will not be disturbed absent an improvident exercise of that[*343] discretion (see Byrne v City of New York, supra; Cruzatti v St. Mary’s Hosp., 193 AD2d 579 [1993]). Under the circumstances of this case, there was no clear showing that the defendants’ failure to fully comply with discovery demands was willful and contumacious. Accordingly, the Supreme Court providently exercised its discretion in determining that the drastic remedy of striking the defendants’ answer was not warranted at this juncture, and that the defendants should be afforded an additional opportunity to comply (see Rivera v Yeshiva & Kollel Harbotzas Torah, 10 AD3d 715 [2004]; Umans v Tomfar Transp., 9 AD3d 405 [2004]; 181 S. Franklin Assoc, v Y & R Assoc., supra; Byrne v City of New York, supra). Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.