YOUWANES v. STEINBRECH (2021)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 6, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint pursuant to CPLR 3126, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in not striking plaintiff's complaint based upon his failures in providing court-ordered discovery (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Global Strat Inc., 22 N.Y.3d 877, 880, 976 N.Y.S.2d 678, 999 N.E.2d 156 [2013]).  A motion court “is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused” (Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [2008] [internal quotation marks omitted]).  On review, “deference [is] afforded to the [motion] court regarding disclosure ․” (see id.;  Watson v. City of New York, 157 A.D.3d 510, 513, 69 N.Y.S.3d 294 [1st Dept. 2018]).  Here, defendants do not point to any flaw or error in the lower court's reasoning.  Thus, defendants fail to satisfy the abuse of discretion standard of review.

Further, “it is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order ․ is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith” (McGilvery v. New York City Tr. Auth., 213 A.D.2d 322, 324, 624 N.Y.S.2d 158 [1st Dept. 1995]).  Even if the proffered excuse is less than compelling, there is a strong preference in our law that matters be decided on their merits (see Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 215, 735 N.Y.S.2d 520 [1st Dept. 2002]).  Supreme Court correctly found that defendants fail to demonstrate that an order of dismissal or preclusion was warranted by the record.