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

Michael CARELLA, et al., Plaintiffs, v. REILLY & ASSOCIATES, et al., Defendants Third-Party Plaintiffs-Respondents;  Italiano Brothers Drywall and Stucco, Inc., Third-Party Defendant-Appellant.

Decided: August 19, 2002

SANDRA J. FEUERSTEIN, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS and STEPHEN G. CRANE, JJ. Rivkin, Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Harris J. Zakarin of counsel), for third-party defendant-appellant. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Douglas L. Pintauro and Martin A. Schwartzberg of counsel), for defendants third-party plaintiffs-respondents.

In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Nassau County (Alpert, J.), dated February 21, 2001, as granted that branch of the motion of the defendants third-party plaintiffs which was to impose a monetary sanction in the sum of $1,500 against it, and (2) an order of the same court, entered August 3, 2001, as granted that branch of the motion of the defendants third-party plaintiffs which was to strike its answer.

ORDERED that the order dated February 21, 2001, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order entered August 3, 2001, is reversed insofar as appealed from, on the law and as a matter of discretion, that branch of the motion of the defendants third-party plaintiffs which was to strike the answer of the third-party defendant is denied, and the third-party defendant's answer is reinstated;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

 The Supreme Court providently exercised its discretion in imposing costs in the sum of $1,500 against the third-party defendant, Italiano Brothers Drywall and Stucco, Inc. (hereinafter Italiano Brothers), for its failure to timely comply with court-ordered discovery and the discovery demands of the defendants third-party plaintiffs, Reilly & Associates and Joseph E. Reilly, Jr. (hereinafter Reilly) (see Matter of Gaye, 285 A.D.2d 465, 727 N.Y.S.2d 334;  Heffney v. Brookdale Hosp. Center, 102 A.D.2d 842, 476 N.Y.S.2d 609).

 The Supreme Court improvidently exercised its discretion, however, in striking Italiano Brothers' answer for its failure to comply with the order directing it to pay the sanction.   Italiano Brothers had substantially, albeit tardily, complied with the Reilly discovery demands, with the exception of the inspection of a scaffold, which was not a basis for Reilly's motion to strike the third-party answer.   This belated compliance, while deserving of the monetary sanction imposed in the prior order of the Supreme Court, undermines the Supreme Court's finding that Italiano Brothers engaged in willful and contumacious conduct.

Moreover, striking the third-party answer duplicates the discovery sanction previously imposed directing Italiano Brothers to pay Reilly's costs up to a modest $1,500.   Although the failure to pay the $1,500 costs may have been willful, a remedy short of striking the third-party answer was available.   The Supreme Court should have directed entry of judgment in that amount in favor of Reilly and against Italiano Brothers (see 22 NYCRR 130-1.2).   In light of the clear preference for deciding cases on the merits (see Halali v. Evanston Ins. Co., 288 A.D.2d 260, 262, 733 N.Y.S.2d 436), and in view of Italiano Brothers' allegation of a potentially meritorious defense of the lack of a “grave injury” as defined in Workers Compensation Law § 11 (see Meis v. ELO Org., 97 N.Y.2d 714, 740 N.Y.S.2d 689, 767 N.E.2d 146), the appropriate penalty for the failure to timely pay the $1,500 costs should not include striking the third-party answer under the circumstances of this case.

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