Jenkins v. City of New York

Full title: WARNER JENKINS et al., Appellants, v. CITY OF NEW YORK et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 12, 2005

24 A.D.3d 516 (N.Y. App. Div. 2005)

805 N.Y.S.2d 285

Opinion

2005-00465.

December 12, 2005.

In an action, inter alia, to recover damages for false arrest and malicious prosecution, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated December 8, 2004, which denied their motion to strike the defendants' answer.

Before: Schmidt, J.P., S. Miller, Mastro, Spolzino and Lunn, JJ., concur.

Ordered that the order is affirmed, with costs.

The record does not demonstrate that the defendants willfully and contumaciously failed to comply with discovery demands. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to strike the answer ( see Cianciolo v. Trism Specialized Carriers, 274 AD2d 369, 370; Vancott v. Great Atl. Pac. Tea Co., 271 AD2d 438; Brown v. United Christian Evangelistic Assn., 270 AD2d 378, 379).