MAFFAI v. COUNTY OF SUFFOLK (2007)

In an action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 30, 2006, which granted that branch of the plaintiffs' motion pursuant to CPLR 3126(3) which was, in effect, to strike its eighth affirmative defense for its failure to comply with discovery demands.

ORDERED that the order is reversed, on the law, the facts, and in the exercise of discretion, with costs, and the motion is denied.

 Although actions should be resolved on the merits wherever possible (see Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 580, 597 N.Y.S.2d 457), a court may strike parts of a pleading as a sanction against a party who has failed to comply with court-ordered discovery (see CPLR 3126 [3];  Byrne v. City of New York, 301 A.D.2d 489, 490, 753 N.Y.S.2d 132;  Barth v. City of New York, 294 A.D.2d 386, 387, 741 N.Y.S.2d 735;  Espinal v. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610).   However, the extreme sanction of striking an affirmative defense is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see Santigate v. Linsalata, 304 A.D.2d 639, 641, 759 N.Y.S.2d 100;  Byrne v. City of New York, supra;  Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).

 The record demonstrates that the appellant substantially complied with outstanding discovery requests, and was unable to produce certain documents because they did not exist or were not in its possession (see Euro-Central Corp. v. Dalsimer, Inc., 22 A.D.3d 793, 794, 803 N.Y.S.2d 171;  Bach v. City of New York, 304 A.D.2d 686, 687, 757 N.Y.S.2d 759;  Romeo v. City of New York, 261 A.D.2d 379, 380, 689 N.Y.S.2d 517).   Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiffs' motion which was, in effect, to strike the appellant's eighth affirmative defense.