ASHKENAZY v. NEW YORK CITY HOUSING AUTHORITY (2006)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Silverman, J.), dated April 26, 2005, as denied the motion of the defendant 4-A General Contracting Corp. to dismiss the complaint insofar as asserted against it based on the failure of the plaintiff's decedent to appear for a court-ordered physical examination.

ORDERED that the appeal by the defendant New York City Housing Authority is dismissed on the ground that it is not aggrieved by the order appealed from (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant 4-A General Contracting Corp.;   and it is further,

ORDERED that one bill of costs is awarded to the respondent.

 The Supreme Court providently exercised its discretion in denying the motion of the defendant 4-A General Contracting Corp. (hereinafter 4-A) to dismiss the complaint insofar as asserted against it on the ground that the plaintiff's decedent failed to submit to a physical examination before her death.   The drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order or request should be granted where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith (see Zletz v. Wetanson, 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852;  cf. Xina v. City of New York, 13 A.D.3d 440, 441, 785 N.Y.S.2d 709;  Kroll v. Parkway Plaza Joint Venture, 10 A.D.3d 633, 633-634, 781 N.Y.S.2d 613). Here, 4-A failed to demonstrate that the plaintiff's decedent willfully violated the court's order to appear for a physical examination since, among other things, there was no showing that it served the plaintiff's decedent with a notice of physical examination pursuant to CPLR 3121(a) (see Francisco v. Vazquez, 303 A.D.2d 625, 626, 756 N.Y.S.2d 643;  Stopnik v. Nederlander Assoc., 262 A.D.2d 1, 2, 690 N.Y.S.2d 563;  McGilvery v. New York City Tr. Auth., 213 A.D.2d 322, 324, 624 N.Y.S.2d 158).

We note that the order appealed from did not grant or deny the separate motion by the defendant New York City Housing Authority (hereinafter NYCHA) to dismiss the complaint insofar as asserted against it.   Thus, the NYCHA's motion remains pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99), and its appeal must be dismissed.