NIEVES v. Slattery Associates, Inc., nonparty-defendant. (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Kings County (Solomon, J.) dated November 3, 2004, as denied that branch of his motion pursuant to CPLR 3126 which was to strike the answer of the defendant City of New York for failing to comply with five orders directing discovery compliance, (2) so much of an order of the same court dated May 11, 2005, as denied that branch of his motion which was to strike the answer of the defendant City of New York for failing to comply with an additional order directing discovery compliance, and (3) so much of an order of the same court dated October 19, 2005, as denied that branch of his motion which was to compel discovery.

ORDERED that the orders are affirmed insofar as appealed from, with costs.

 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 Jenkins v. City of New York, 13 A.D.3d 342, 788 N.Y.S.2d 117;  Simpson v. City of New York, 10 A.D.3d 601, 603, 781 N.Y.S.2d 683;  Decavallas v. Pappantoniou, 300 A.D.2d 617, 618, 752 N.Y.S.2d 712;  Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351, 352, 665 N.Y.S.2d 435).   The Supreme Court is vested with broad discretion in supervising disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (see Jenkins v. City of New York, supra at 342, 788 N.Y.S.2d 117;  Riley v. ISS Intl. Serv. Sys., 304 A.D.2d 637, 757 N.Y.S.2d 593;  Decavallas v. Pappantoniou, supra;  Patterson v. Greater N.Y. Corp. of Seventh Day Adventists, 284 A.D.2d 382, 383, 726 N.Y.S.2d 278).   Here, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motions which were to strike the answer of the defendant City of New York since there was no clear showing that the City's conduct, including its late disclosure of certain arterial highway maintenance records, was willful and contumacious (see Mawson v. Historic Properties, LLC, 30 A.D.3d 480, 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;  Carella v. Reilly & Assocs., 297 A.D.2d 326, 327, 746 N.Y.S.2d 315).

The plaintiff's remaining contentions either are unpreserved for appellate review or without merit.