NOVIKOV v. MAIMONIDES MEDICAL CENTER (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 27, 2007, which denied their motion pursuant to CPLR 3126 to strike the answer and amended answer of the defendant Maimonides Medical Center for failure to provide certain disclosure and (2), as limited by their brief, from so much of an order of the same court dated September 28, 2007, as denied that branch of their motion which was for leave to renew their prior motion.

ORDERED that the order dated February 27, 2007, is affirmed;  and it is further,

ORDERED that the order dated September 28, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Maimonides Medical Center.

 The drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see CPLR 3126[3];  Joe DeMartino Mason Contrs. & Sons, Inc. v. Main Plaza Realty Co., 44 A.D.3d 716, 716-717, 842 N.Y.S.2d 719;  Gateway Tit. & Abstract, Inc. v. Your Home Funding, Inc., 40 A.D.3d 919, 836 N.Y.S.2d 667;  Nieves v. City of New York, 35 A.D.3d 557, 558, 826 N.Y.S.2d 647;  Faulkner v. City of New York, 32 A.D.3d 452, 819 N.Y.S.2d 473;  Kuzmin v. Visiting Nurse Serv. of N.Y., 22 A.D.3d 643, 643-644, 804 N.Y.S.2d 352;   Cestaro v. Chin, 20 A.D.3d 500, 501-502, 799 N.Y.S.2d 143).   On the record presented, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion pursuant to CPLR 3126 to strike the answer and amended answer of the defendant Maimonides Medical Center (hereinafter Maimonides) as they did not establish that Maimonides willfully and contumaciously failed to comply with discovery orders or demands, or delayed the progress of discovery.

The plaintiffs' remaining contentions are without merit.