Opinion
March 2, 2000
Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered on or about December 14, 1998, which granted plaintiff's motion to strike defendants' answer, directed defendants to comply with plaintiff's discovery demands and denied defendants' cross motion for a protective order, unanimously modified, on the law and the facts, to deny plaintiff's motion to strike defendants' answer and to reinstate said answer, and otherwise affirmed, without costs.
James M. Lane, for Plaintiff-Respondent.
William R. Pirk, Jr., for Defendants-Appellants.
NARDELLI, J.P., TOM, LERNER, RUBIN, FRIEDMAN, JJ.
The motion court erred in granting plaintiff's motion to strike defendants' answer for discovery noncompliance because there was no evidence that defendants' failure to disclose was willful or contumacious (see, New v. Scores Entertainment, Inc., 255 A.D.2d 108;Berman v. Szpilzinger, 180 A.D.2d 612). The motion court, however, properly denied defendants' cross motion for a protective order because there was nothing unreasonable or improper about plaintiff's discovery demands (see, CPLR 3103[a]).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.