ISCOWITZ v. Town of Babylon, respondent. (2008)

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, Suffolk County (R. Doyle, J.), dated July 16, 2007, as denied their cross motion pursuant to CPLR 3126 to strike the answer of the defendant Town of Babylon for failure to timely comply with discovery.

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

 Contrary to the plaintiffs' contentions, the Supreme Court properly denied their cross motion pursuant to CPLR 3126 to strike the Town of Babylon's answer for its belated disclosure of certain information sought in discovery.   The plaintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction (see Melcher v. City of New York, 38 A.D.3d 376, 377, 832 N.Y.S.2d 186;  Escourse v. City of New York, 27 A.D.3d 319, 320, 812 N.Y.S.2d 478;  Simpson v. City of New York, 10 A.D.3d 601, 602, 781 N.Y.S.2d 683;  Brown v. Veterans Transp. Co., 170 A.D.2d 638, 567 N.Y.S.2d 65;  Levy v. Wexler, 16 A.D.2d 688, 227 N.Y.S.2d 482).

 In any event, the plaintiffs did not make a clear showing of willful and contumacious conduct on the part of the Town to warrant the drastic remedy of striking the answer (see e.g. Nieves v. City of New York, 35 A.D.3d 557, 558, 826 N.Y.S.2d 647;  Simpson v. City of New York, 10 A.D.3d at 602, 781 N.Y.S.2d 683;  Ahroni v. City of New York, 175 A.D.2d 789, 790, 572 N.Y.S.2d 925;  Forman v. Jamesway Corp., 175 A.D.2d 514, 515-516, 572 N.Y.S.2d 782), nor did they demonstrate that they would be substantially prejudiced by the late disclosure.