From Casetext: Smarter Legal Research

Fox v. Eastman Kodak Company

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 29, 2000
275 A.D.2d 921 (N.Y. App. Div. 2000)

Opinion

September 29, 2000.

Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Dismiss Pleading.

PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, KEHOE AND LAWTON, JJ.


Order unanimously reversed on the law and in the exercise of discretion without costs and motion denied on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry. Memorandum: The extreme sanction of dismissal is warranted only where there is a clear showing that plaintiff's failure to comply with discovery demands was willful, contumacious or in bad faith ( see, Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193; see also, Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042). No such showing was made here. Rather, the record establishes that much of the delay in responding to defendant's demands is attributable to illness and injury suffered by plaintiff's counsel during the discovery process. Under the circumstances, we conclude that dismissal of the action is not warranted and that plaintiff should be afforded one final chance to comply with discovery ( see, Adams v. Deloreto, 272 A.D.2d 875 [decided May 10, 20 00]; Kimmel v. State of New York, 267 A.D.2d 1079, 1081). We therefore, in the exercise of our discretion, deny defendant's motion to dismiss the action pursuant to CPLR 3126 on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry ( see, Johnson v. Brown, 242 A.D.2d 562, 563; Gamble v. Anlynne, Inc., 199 A.D.2d 303).


Summaries of

Fox v. Eastman Kodak Company

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 29, 2000
275 A.D.2d 921 (N.Y. App. Div. 2000)
Case details for

Fox v. Eastman Kodak Company

Case Details

Full title:CARMEN R. FOX, PLAINTIFF-APPELLANT, v. EASTMAN KODAK COMPANY…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 29, 2000

Citations

275 A.D.2d 921 (N.Y. App. Div. 2000)
714 N.Y.S.2d 249

Citing Cases

Sarach v. M & T Bank Corp.

When faced with a motion alleging “willful, contumacious or bad faith conduct,” our Court analyzes it…

Eaton v. Hungerford

"It is well settled that the court is vested with broad discretion to control discovery and that the court's…