Spira v. Antoine
| Decision Date | 09 March 1993 |
| Citation | 596 N.Y.S.2d 1,191 A.D.2d 219 |
| Parties | Ruth SPIRA, Individually and as Aministratrix of the Goods, Chattels and Credits which were of Isaac Spira, deceased, Plaintiff-Appellant, v. Roger ANTOINE, et al., Defendants, and George Lambert, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kenneth Mauro, Great Neck, for defendant-appellant.
Paul F. McAloon, New York City, for plaintiff-respondent.
Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, ASCH and RUBIN, JJ.
Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about September 18, 1992 which, to the extent appealed from, denied plaintiff's motion to strike the answer of the now deceased defendant Panayotis Christopoulous, and the order of said court and justice entered on or about April 27, 1991, which denied similar relief and ordered that plaintiff re-serve written deposition questions, unanimously affirmed, without costs.
Given the circumstances intervening between the initial demand for disclosure by plaintiff-appellant, including defendant's illness which was documented by a physician and substitution for defendant's decedent, we cannot say that the motion court abused its discretion in evaluating such factors and in denying plaintiff's motion to strike the defendant's decedent's answer. Although, CPLR 3126 provides for the imposition of sanctions for a deliberate or willful failure to comply with discovery (Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952), it generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party (Lowitt v. Burton I. Korelitz, M.D., P.C., 152 A.D.2d 506, 507, 544 N.Y.S.2d 14). It would not be appropriate, at bar, for this Court to substitute its discretion for that of the justice sitting in the IAS court. (See, Sawh v. Bridges, 120 A.D.2d 74, 77, 507 N.Y.S.2d 632, appeal dismissed, 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312).
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