Opinion
June 15, 1987
Appeal from the Supreme Court, Nassau County (Kelly, J.).
Ordered that the order is modified, by deleting the provision for a joint trial of this action and the Gardner personal injury action; as so modified, the order is affirmed, without costs or disbursements.
The appellants failed to clearly demonstrate that the plaintiff's delay in complying with their discovery demands was willful and contumacious. Moreover, it does not appear that they have suffered any prejudice as a result of the delay. Consequently, the court properly exercised its discretion in denying the appellants' motion to dismiss the complaint pursuant to CPLR 3126 (3) (see, Rubin v Pan Am. World Airways, 128 A.D.2d 765; Bassett v Bando Sangsa Co., 103 A.D.2d 728; Joseph v Roller Castle, 100 A.D.2d 839).
The court, however, did err in ordering a joint trial of this matter with the underlying personal injury action. The purpose of this declaratory judgment action is to resolve the issue of whether Continental Insurance Company has a duty to defend Master Collision, Inc., in the personal injury action brought by the Gardners (see, Colon v Aetna Life Cas. Ins. Co., 66 N.Y.2d 6, 10). Accordingly, this declaratory judgment action should proceed to trial and be determined prior to the trial of the personal injury action.
We have considered the appellants' remaining contention and find it to be without merit. Lawrence, J.P., Weinstein, Rubin and Kooper, JJ., concur.