MATEO v. Regine's Originals, Inc., Defendant-Appellant. (2000)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 10, 1999, which struck defendant-appellant's answer for failure to comply with court-ordered discovery, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the answer reinstated.   Appeal from order, same court and Justice, entered November 22, 1999, which denied defendant-appellant's motion seeking to vacate the prior order, unanimously dismissed, without costs, as moot.

 Striking a pleading is a drastic remedy and is only warranted “where a clear showing has been made that the noncompliance with a discovery order was willful, contumacious or due to bad faith” (Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193, 672 N.Y.S.2d 95, see also, Washington v. Alco Auto Sales, 199 A.D.2d 165, 605 N.Y.S.2d 271).   Here, defendant-appellant's failure to comply with the discovery order and appear for deposition was due to law office failure.   There is no evidence indicating willful or contumacious conduct or an intent to abandon the defense.   The motion court, therefore, erred in striking the answer.

MEMORANDUM DECISION.