PERSONALIZED HOME CARE LTD v. TVERT (1999)

In an action, inter alia, to recover damages for accounting malpractice, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered June 3, 1998, which granted the defendants' motion pursuant to CPLR 3126 to dismiss the complaint for failure to provide discovery.

ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is denied, and the complaint is reinstated;  and it is further,

ORDERED that the plaintiffs' time to produce the appropriate witnesses for deposition is enlarged until 30 days after the service upon them of a copy of this decision and order.

The Supreme Court improvidently exercised its discretion in dismissing the plaintiffs' complaint pursuant to CPLR 3126 inasmuch as the plaintiffs did not exhibit willful and contumacious conduct in failing to appear for depositions (see, Zletz v. Wetanson, 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852).   However, the plaintiffs are directed to produce the appropriate witnesses for deposition.

MEMORANDUM BY THE COURT.