Opinion
2000-11259
Argued February 14, 2002.
May 13, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated October 27, 2000, which, in effect, granted his motion to strike the answer of the defendants New York City Board of Education and Abiela Contracting, Inc., only to the extent of directing those defendants to comply with certain discovery demands within 60 days.
Bader, Yakaitis Nonnenmacher, LLP, New York, N.Y. (John J. Nonnenmacher of counsel), for appellant.
Wilson Elser Moskowitz Edelman Dicker, LLP, New York, N.Y. (Shaub, Ahmuty, Citrin Spratt, LLP [Steven J. Ahmuty, Jr., and Samuel D. Carucci] of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, JJ.
ORDERED that the order is affirmed, with costs.
It is well settled that "the determination whether or not to strike a pleading lies within the sound discretion of the court" (Ploski v. Riverwood Owners Corp., 284 A.D.2d 316, 317). However, "[w]henever possible, actions should be resolved on the merits" (Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351, 352). Accordingly, "[t]he drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" (Garcia v. First Spanish Baptist Church of Islip, 259 A.D.2d 465). Contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretion. The defendants New York City Board of Education and Abiela Contracting, Inc., generally provided the requested discovery and the record does not clearly demonstrate that their failure to fully comply with discovery was willful, contumacious, or in bad faith (see Payne v. Rouse Corp., 269 A.D.2d 510).
SANTUCCI, J.P., SMITH, GOLDSTEIN and FRIEDMANN, JJ., concur.