Opinion
October 6, 1988
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
Although the record indicates that appellant's counsel was less than diligent in meeting court deadlines, these derelictions did not warrant imposition of the severe sanction of striking appellant's answer. The papers submitted by respondent in support of its motion to strike acknowledged that appellant's failure to timely pay the $500 sanction imposed by the court was probably due to law office failure and not to any willful or contumacious behavior on the part of appellant. While the court could find no circumstance to excuse appellant's conduct, it made no finding that the conduct was willful, contumacious or due to bad faith. (See, Bassett v Bando Sangsa Co., 103 A.D.2d 728 [1st Dept 1984]; Mancusi v Middlesex Ins. Co., 102 A.D.2d 846 [2d Dept 1984].) Absent such a finding, the extreme sanction of striking a pleading is unwarranted, especially where the other party cannot show that it has been prejudiced (Jet Asphalt Corp. v Consolidated Edison Co., 114 A.D.2d 489, 491 [2d Dept 1985]; Epstein v Lenox Hill Hosp., 108 A.D.2d 616, 617 [1st Dept 1985]).
We note that the court's order of May 29, 1987, which conditionally granted respondent's ex parte oral application to strike appellant's answer for failure to appear at a preliminary conference in November 1986, was issued after appellant had appeared at the preliminary conference held on April 20, 1987. Moreover, that order granting respondent's motion to strike unless appellant paid a fine of $500 within 10 days after service of the order with notice of entry was not served on appellant until September 5, 1987. Appellant's tender of the fine a month and a half later was rejected by respondent. Inasmuch as the action was proceeding in due course and discovery had commenced, we find that it was an improvident exercise of discretion for the court to strike appellant's answer.
Concur — Sullivan, J.P., Ross, Milonas, Rosenberger and Ellerin, JJ.