ZOUEV v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated November 16, 2005, as denied his motion pursuant to CPLR 3126(3) to strike the answer upon the defendant's failure to comply with an order of the same court (Knipel, J.) dated December 17, 2002.

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

The plaintiff contends that the Supreme Court should have granted his motion pursuant to CPLR 3126(3) to strike the defendant's answer because it failed to comply with a conditional order requiring it to provide various items of disclosure by a date certain, or face sanctions pursuant to CPLR 3126.   As a result of the defendant's failure to produce these items on or before the date certain, the conditional order dated December 17, 2002, became absolute (see Marrone v. Orson Holding Corp., 302 A.D.2d 371, 371-372, 753 N.Y.S.2d 899;  Stewart v. City of New York, 266 A.D.2d 452, 698 N.Y.S.2d 874;  Clissuras v. Concord Vil. Owners, 233 A.D.2d 475, 650 N.Y.S.2d 982).   To be relieved of the adverse impact of the order striking its answer, the defendant was required to demonstrate a reasonable excuse for its failure to produce the requested items and the existence of a meritorious defense (see Macancela v. Pekurar, 286 A.D.2d 320, 728 N.Y.S.2d 700).   Because the defendant satisfied this standard here, we affirm the order of the Supreme Court denying the plaintiff's motion to strike the defendant's answer.

 Actions should be resolved on the merits wherever possible, and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion with the court (see Pascarelli v. City of New York, 16 A.D.3d 472, 472-473, 791 N.Y.S.2d 617;  Espinal v. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610;  Soto v. City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691;  Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 597 N.Y.S.2d 457).   In addition, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289;  Pascarelli v. City of New York, supra at 473, 791 N.Y.S.2d 617;  Lestingi v. City of New York, 209 A.D.2d 384, 618 N.Y.S.2d 731).   The moving party must “clearly demonstrate” that the failure to comply was willful and contumacious (see Master Collision v. Continental Ins. Co., 131 A.D.2d 645, 646, 516 N.Y.S.2d 727;  see also Pascarelli v. City of New York, supra at 473, 791 N.Y.S.2d 617).

In this case, while we do not condone the defendant's extended delay in furnishing the requested discovery, it has not been “clearly demonstrated” that this delay was the product of willful and contumacious conduct (see Vogel v. Benwil Indus., 267 A.D.2d 232, 699 N.Y.S.2d 870).   Moreover, given the plaintiff's significant delay in prosecuting the action and in seeking to compel the disclosure, as well as the defendant's substantial compliance with outstanding discovery requests while the motion to strike was pending, the Supreme Court providently exercised its discretion in denying the motion (see Ortiz v. Board of Educ. of the City of N.Y., 26 A.D.3d 158, 811 N.Y.S.2d 3;  Pascarelli v. City of New York, supra at 473, 791 N.Y.S.2d 617;  Marrero v. City of New York, 287 A.D.2d 298, 731 N.Y.S.2d 361;  McAllister v. City of New York, 248 A.D.2d 598, 598-599, 669 N.Y.S.2d 918;  Simpson v. Sinha, 246 A.D.2d 361, 666 N.Y.S.2d 418;  Dubinsky v. Rykowsky, 232 A.D.2d 447, 648 N.Y.S.2d 335;  Ungar v. Lesser, 152 A.D.2d 510, 544 N.Y.S.2d 136).