SELAMAJ v. CITY OF NEW YORK (1999)

Supreme Court, Appellate Division, Second Department, New York.

Louis SELAMAJ, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.

Decided: January 19, 1999

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, FRED T. SANTUCCI and MYRIAM J. ALTMAN, JJ.

Stuart H. Finkelstein, Forest Hills, N.Y., for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Paul L. Herzfeld of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), entered January 13, 1998, which denied their motion to strike the defendants' answer pursuant to CPLR 3126(3).

ORDERED that the order is affirmed, with costs.

It is well settled that the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful, contumacious, or in bad faith (see, CPLR 3126; Parish Constr. Corp. v. Franlo Tile, 215 A.D.2d 545, 626 N.Y.S.2d 565; Harris v. City of New York, 211 A.D.2d 663, 622 N.Y.S.2d 289). In this case, the plaintiffs failed to make such a showing. Notably, the defendants' delay in complying with a pre-calendar order was relatively minor and did not cause the plaintiffs to suffer any prejudice (see, Hocevar v. Honig Industrial Diamond Wheel, 172 A.D.2d 588, 568 N.Y.S.2d 145).

MEMORANDUM BY THE COURT.

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