Garcia v. First Spanish Baptist Church of Islip

• Decision Date: 01 March 1999
• Citation: 686 N.Y.S.2d 81,259 A.D.2d 465
• Parties: 1999 N.Y. Slip Op. 1834 Juana GARCIA, appellant, v. FIRST SPANISH BAPTIST CHURCH OF ISLIP, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 81

686 N.Y.S.2d 81

1999 N.Y. Slip Op. 1834

Juana GARCIA, appellant, v. FIRST SPANISH BAPTIST CHURCH OF ISLIP, et al., respondents.

Supreme Court, Appellate Division Second Department.

March 1, 1999.

Keith H. Weidman, Islandia, N.Y., for appellant.

O'Connor, O'Connor, Hintz and Deveney, Garden City, N.Y. (Christopher M. Rogers and Robin Mary Heaney of counsel), for respondents.

SONDRA MILLER, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Jones, J.), dated November 14, 1997, which denied her motion, inter alia, to strike the defendants' answer for failure to comply with discovery, and (2) so much of an order of the same court, entered April 3, 1998, as denied that branch of her motion which was, in effect, for reargument of her prior motion, inter alia, to strike the answer.

ORDERED that the appeal from the order entered April 3, 1998, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 14, 1997, is affirmed insofar as appealed from; and it is further,

ORDERED that the defendants are awarded one bill of costs.

Contrary to the plaintiff's contention, the court did not improvidently exercise its discretion in failing to strike the defendants' answer. The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see, CPLR 3126[3]; Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351, 665 N.Y.S.2d 435; Reddy v. General Cinema Corp. of New York, 242 A.D.2d 693, 663 N.Y.S.2d 54; Dell'Aquila v. Supermarkets Gen. Corp., 180 A.D.2d 708, 579 N.Y.S.2d 738; Ahroni v. City of New York, 175 A.D.2d 789, 572 N.Y.S.2d 925). The record herein fails to support a finding that any failure by the defendants to comply with discovery was willful.

Moreover, it is within the court's wide discretion to determine what is "material and necessary" while striking a sensitive balance between the intrusiveness of the discovery device and the merits, or lack thereof, of the claim (see, Greater New York Mut. Ins. Co. v. Lancer Ins. Co., 203 A.D.2d 515, 611 N.Y.S.2d 35; European Am. Bank v. Competition Motors, Ltd., 186 A.D.2d 784, 589 N.Y.S.2d 82). Certain of the...