Opinion
March 13, 1998
Appeal from Order of Supreme Court, Ontario County, Harvey, J. — Counsel Fees.
Present — Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in awarding plaintiff attorney's fees and costs on her motion to compel discovery (see, CPLR 3126). There is no evidence in the record that defendant or its attorney willfully refused to comply with plaintiff's discovery demand, made just over two months before plaintiff's motion to compel, and the record discloses that defendant's attorney requested clarification in attempting to comply with the demand (cf., Summit Waterproofing Restoration Corp. v. Scarsdale Country Estates Owners, 228 A.D.2d 431; Preferred Equities Corp. v. Ziegleman, 190 A.D.2d 659). We note in addition that plaintiff had delayed nine months in responding to defendant's discovery demands and only responded then after defendant made a motion to preclude. At a minimum, the court should have issued a conditional order before imposing the sanction of attorney's fees in this case. We therefore modify the order in appeal No. 1 by vacating the award of attorney's fees and costs. In light of our determination, the order in appeal No. 2 determining the amount of attorney's fees and costs must be vacated.