WEISSMAN v. 20 EAST 9TH STREET CORPORATION (2008)

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 19, 2007, which granted defendant's motion to dismiss the complaint based on plaintiff Faye Levine's failure to comply with two prior orders directing her to submit to a medical examination by defendant's psychiatrist, and severed defendant's counterclaims seeking ejectment of the incapacitated person and related relief with leave to prosecute in Civil Court, unanimously modified, on the law, the facts and in exercise of discretion, to grant the motion to the extent of precluding plaintiffs from presenting evidence at trial of plaintiff Faye Levine's medical condition, or of defendant's alleged discrimination based on that condition, unless Faye Levine is produced for a medical examination by defendant's psychiatrist within 90 days of service of copy of this order, in which event the motion for sanctions denied and the complaint and counterclaims reinstated, and otherwise affirmed, without costs.

Supreme Court, as we have encouraged trial courts to do (see Figdor v. City of New York, 33 A.D.3d 560, 823 N.Y.S.2d 385 [2006] ), actively supervised disclosure and employed a proactive approach in dealing with plaintiffs' failure to produce plaintiff Faye Levine for an independent medical examination by defendant's psychiatrist.   Nevertheless, under the usual circumstances of this case, we are constrained to modify the order dismissing the complaint.

 The remedy of striking a complaint pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party demonstrates that the non-disclosure was willful, contumacious or due to bad faith (see Cespedes v. Mike & Jac Trucking Corp., 305 A.D.2d 222, 758 N.Y.S.2d 489 [2003];  Christian v. City of New York, 269 A.D.2d 135, 703 N.Y.S.2d 5 [2000];  McGilvery v. New York City Trans. Auth., 213 A.D.2d 322, 324, 624 N.Y.S.2d 158 [1995] ).   Here, plaintiff Faye Levine failed to appear for an independent medical examination by defendant's psychiatrist due to significant mental illness, not willful or contumacious behavior.   Accordingly, a sanction short of dismissal of the complaint, but one commensurate with Faye Levine's failure to appear for an independent medical examination (see Grabow v. Blue Eyes, Inc., 123 A.D.2d 155, 509 N.Y.S.2d 535 [1986];  see generally Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C3126:8 [main volume] ), is warranted if Faye Levine fails to appear for such an examination as directed above.