WASIF v. KHAN (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.) dated February 17, 2006, as denied their motion pursuant to CPLR 3126 and 3215 to strike the defendant's answer to the amended complaint and for leave to enter judgment on the issue of liability upon the defendant's default in complying with discovery demands and answering the amended complaint.

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

The defendant submitted properly-executed affidavits of service which raised a presumption that the answer to the amended complaint and responses to the discovery demands were timely served pursuant to the compliance conference order dated October 6, 2005 (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Engel v. Lichterman, 62 N.Y.2d 943, 944-945, 479 N.Y.S.2d 188, 468 N.E.2d 26;  Kendall v. Kelly, 283 A.D.2d 401, 723 N.Y.S.2d 893).   The mere denial of receipt of these papers by the plaintiffs' attorney was insufficient to overcome the presumption of a proper mailing and receipt (see Sarva v. Chakravorty, 14 A.D.3d 689, 789 N.Y.S.2d 231;  Matter of Most v. Morrison, 280 A.D.2d 603, 720 N.Y.S.2d 551).   Furthermore, the plaintiffs failed to demonstrate that the defendant wilfully and contumaciously failed to respond to discovery demands or to substantially comply with prior court orders (see 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;  Pascarelli v. City of New York, 16 A.D.3d 472, 472-473, 791 N.Y.S.2d 617).   Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion.

We decline the defendant's request to impose a sanction upon the plaintiffs for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1).