JOHNSON v. DOW (2008)

 Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle was rear-ended while stopped at a red light.   Mary E. Dow (defendant) contends that Supreme Court erred in denying her motion for summary judgment dismissing the complaint against her because plaintiff failed to specify in her bill of particulars the particular category of serious injury that she allegedly sustained (see Insurance Law § 5102[d] ).  We reject that contention.  “The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious” (Anonymous v. Duane Reade, Inc., 49 A.D.3d 479, 480, 853 N.Y.S.2d 599) and, here, defendant failed to make that showing (see Kosh v. Naughton, 45 A.D.3d 1324, 844 N.Y.S.2d 811;   Randazzo v. Our Lady of Mercy Med. Ctr., 284 A.D.2d 158, 726 N.Y.S.2d 638).   The remedy for a plaintiff's failure to comply with a demand for a bill of particulars is a motion to compel compliance (see CPLR 3042[c];   Randazzo, 284 A.D.2d 158, 726 N.Y.S.2d 638), and it does not appear on the record before us that defendant made such a motion (see Randazzo, 284 A.D.2d 158, 726 N.Y.S.2d 638).   To the extent that defendant's motion may be construed to contend that defendant is entitled to summary judgment because plaintiff did not in fact sustain a serious injury, we reject that contention.   Even assuming, arguendo, that defendant established her entitlement to judgment as a matter of law, we conclude that plaintiff raised a triable issue of fact sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: