MYUNG SUM SUH v. JUNG JA KIM (2008)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), entered July 11, 2007, as granted that branch of the defendants' motion which was pursuant to CPLR 3126 to strike the complaint and dismiss the action.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3126 to strike the complaint and dismiss the action is denied.

The Supreme Court improvidently exercised its discretion in striking the complaint, as there was no clear showing that the plaintiffs' failure to comply with certain discovery demands and court-ordered discovery was willful or contumacious (see CPLR 3126;  Manko v. Lenox Hill Hosp., 44 A.D.3d 1014, 844 N.Y.S.2d 414;  Mawson v. Historic Props., LLC, 30 A.D.3d 480, 481, 817 N.Y.S.2d 364;  Lombardo v. St. Francis Hosp. Rehabilitation Servs., 16 A.D.3d 385, 386, 790 N.Y.S.2d 405).   The record supports a finding that the plaintiffs substantially, albeit tardily, complied with the requested disclosure, and that their conduct was not willful or contumacious (see Manko v. Lenox Hill Hosp., 44 A.D.3d 1014, 844 N.Y.S.2d 414;  Mawson v. Historic Props., LLC, 30 A.D.3d at 481, 817 N.Y.S.2d 364;  Lombardo v. St. Francis Hosp. Rehabilitation Servs., 16 A.D.3d at 386, 790 N.Y.S.2d 405).