Opinion
2007-442 N C.
Decided May 27, 2008.
Appeal from an order of the District Court of Nassau County, First District (Anthony William Paradiso, J.), entered December 12, 2006. The order denied defendant's motion to strike the complaint and to impose sanctions upon plaintiff.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ 2007-442 N C.
In this action based upon defendant's alleged fraudulent conveyance of property, defendant appeals from an order which denied her motion to strike the complaint and impose sanctions upon plaintiff for plaintiff's alleged failure to, inter alia, comply with discovery orders.
Actions should be resolved on their merits, whenever possible, and the drastic remedy of the striking of a pleading should not be employed without a "clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ( A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 737 [internal quotation marks and citations omitted]; see also Byrne v City of New York, 301 AD2d 489). Moreover, the court below is vested with broad discretion in supervising disclosure, and its determination that discovery sanctions are not warranted will not be disturbed absent an improvident exercise of that discretion ( see Bach v City of New York, 304 AD2d 686).
We note that defendant limits her request for relief to dismissal and sanctions, and seeks no other relief in the alternative. Defendant did not meet her burden of demonstrating that any failure by plaintiff to respond to her demands was the result of willful, or contumacious conduct. Indeed, the drastic remedy of striking the complaint was not warranted in the instant case because plaintiff substantially complied with defendant's notice for discovery and inspection, as well as the demand for collateral source information ( see Sullivan v Nigro, 48 AD3d 454). With respect to defendant's objections to plaintiff's responses to defendant's demand for a bill of particulars, the court below correctly found that the function of the bill of particulars was not to provide evidentiary material ( see Di Lorenzo v Ellison, 114 AD2d 926).
To the extent that defendant contends that the court below violated the doctrine of the law of the case by overruling prior court orders regarding the propriety of her discovery demands and demand for a bill of particulars, we note that the doctrine of law of the case is inapplicable to the prior discovery orders ( see Sullivan v Nigro, 48 AD3d 454, supra; see also Latture v Smith, 304 AD2d 534).