Opinion
November 5, 1998
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
It is well established that "in furtherance of the policy of favoring the resolution of actions on the merits, the extreme sanction of dismissal is warranted only where a clear showing has been made that the noncompliance with a discovery order was willful, contumacious or due to bad faith" (Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193; see also, Rich Rich Trading Co. v. Theodore, Ltd., 225 A.D.2d 307; Gross v. Edmer Sanitary Supply Co., 201 A.D.2d 390). Here, while there was considerable evidence that defendant and/or its counsel took an irresponsible attitude to complying with discovery obligations, we do not find that level of willfulness that would justify dismissal. However, in light of the repeated failure of the defense to provide the names of persons employed by it at the time of the subject incident, we find that defendant should be precluded from offering testimony of any witnesses who have not yet been identified. We note that defendant's claim that it has been unable to ascertain those names because its documents were seized by Federal authorities has not been supported by evidence or by any assertion that an attempt was made to obtain the information from those authorities.
Moreover, we find that the circumstances fully warranted the imposition of the $2,500 penalty pursuant to CPLR 3126 as fair recompense for time spent by plaintiff's attorney in unsuccessful attempts to obtain compliance with discovery orders. We note that this penalty, which was imposed pursuant to the provisions of CPLR 3126 setting forth penalties for failure to comply with discovery obligations, was not governed by the provisions of 22 NYCRR 130-1.1 and it was therefore not necessary that the court find that defendant's behavior had been "frivolous" within the meaning of that rule (see, Taub v. Wulwick, 168 A.D.2d 492).
In light of the absence of any evidence indicating that plaintiff's late filing of the note of issue was willful or contumacious, the court properly denied defendant's motion to strike the complaint.
Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.