KAPLAN v. EMMETT (1999)

In an action to recover damages for medical malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Bellard, J.), entered October 5, 1998, as denied their motion to strike the defendants' answers and/or defenses, or to preclude the defendants from presenting certain evidence at trial.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied the motion, inter alia, to strike the defendants' answers, as there was no clear showing that their failure to comply with discovery was willful, contumacious, or in bad faith (see, CPLR 3126).   Instead, it appears that they made good-faith efforts to comply with all discovery requests (see, Garcia v. First Spanish Baptist Church of Islip, 259 A.D.2d 465, 686 N.Y.S.2d 81;  First Bank of the Americas v. Motor Car Funding, Inc., 257 A.D.2d 287, 690 N.Y.S.2d 17;  Brennan v. McCarthy, 255 A.D.2d 477, 680 N.Y.S.2d 638).

In addition, the record fails to disclose any prejudice to the plaintiffs from the defendants' failure to timely comply with the prior court orders (see, Selamaj v. City of New York, 257 A.D.2d 616 , 684 N.Y.S.2d 559;  Thomas v. McGuire Serv. Corp., 251 A.D.2d 148, 674 N.Y.S.2d 348).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.