Cambry v. Gardens, 2007-00949.

• Citation: 50 A.D.3d 1081,857 N.Y.S.2d 224,2008 NY Slip Op 04047
• Decision Date: 29 April 2008
• Docket Number: 2007-05330.,2007-05109.,2007-00949.,2007-01528.
• Parties: NATHANIEL CAMBRY, Respondent, v. LINCOLN GARDENS, Appellant, and A.L. EASTMOND & SONS, INC., et al., Respondents.
• Court: New York Supreme Court Appellate Division

50 A.D.3d 1081

857 N.Y.S.2d 224

2008 NY Slip Op 04047

NATHANIEL CAMBRY, Respondent, v. LINCOLN GARDENS, Appellant, and A.L. EASTMOND & SONS, INC., et al., Respondents.

2007-00949.

2007-01528.

2007-05109.

2007-05330.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 29, 2008.

In an action to recover damages for personal injuries, the defendant Lincoln Gardens appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated November 17, 2006, as denied those branches of its motion which were for summary judgment dismissing the common-law negligence and Labor Law § 240 (1) causes of action insofar as asserted against it, and for summary judgment on its common-law indemnity cross claim, (2), as limited by its brief, from so much of an order of the same court dated January 19, 2007, as granted those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability against it on the Labor Law § 240 (1) cause of action, and to strike its answer, (3), as limited by its brief, from so much of an order of the same court dated May 18, 2007, as, upon granting that branch of its motion which was for reargument of that branch of the plaintiff's cross motion which was to strike its answer, adhered to the original determination and reinstated the Labor Law § 200 cause of action insofar as asserted against it, and (4) an order of the same court dated May 18, 2007, which, inter alia, denied its motion to stay or adjourn the trial of the action.

Ordered that the appeal from so much of the order dated January 19, 2007, as granted that branch of the plaintiff's cross motion which was to strike the answer of Lincoln Gardens is dismissed, as that portion of the order was superseded by the first order dated May 18, 2007, made upon reargument; and it is further,

Ordered that the appeal from the second order dated May 18, 2007, which, inter alia, denied the motion of the defendant Lincoln Gardens to a stay or adjourn the trial, is dismissed as abandoned; and it is further,

Ordered that the order dated November 17, 2006 is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Lincoln Gardens which was for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order dated November 17, 2006 is affirmed insofar as appealed from; and it is further,

Ordered that the order dated January 19, 2007 is reversed insofar as reviewed, on the law, and that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability against the defendant Lincoln Gardens on the Labor Law § 240 (1) cause of action is denied; and it is further,

Ordered that the first order dated May 18, 2007 is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof which, upon reargument, adhered to the original determination granting that branch of the plaintiff's cross motion which was to strike the answer of the defendant Lincoln Gardens and substituting therefor a provision, upon reargument, vacating so much of the order dated January 19, 2007, as granted that branch of the plaintiff's cross motion which was to strike the answer of the defendant Lincoln Gardens, and denying that branch of the cross motion; as so modified, the first order dated May 18, 2007 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is granted to the defendant Lincoln Gardens payable by the respondents appearing separately and filing separate briefs.

The Supreme Court improvidently exercised its discretion in striking the answer of the defendant Lincoln Gardens for failure to comply with discovery. A court in its discretion may strike the pleading of a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). However, such a sanction is inappropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see CPLR 3126 [3]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643 [2005]; Espinal v City of New York, 264 AD2d 806 [1999]). Belated but substantial compliance with a discovery order undermines the position that the delay was a product of willful or contumacious conduct (see Pascarelli v City of New York, 16 AD3d 472 [2005]; Carella v Reilly & Assoc., 297 AD2d 326 [2002]). Here, the circumstances surrounding a deposition on December 13, 2006 militate against a finding that Lincoln Gardens' failure to produce a witness was willful or contumacious (cf. Rampersad v New York City Dept. of Educ., 30 AD3d 218 [2006]).

The Supreme Court further erred in denying...