Opinion
January 13, 2000
Appeal from an order of the Supreme Court (Williams, J.), entered January 6, 1999 in Saratoga County, which, inter alia, denied defendants' motion to dismiss the complaint.
Couch White LLP (James J. Barriere of counsel), Albany, for appellants.
O'Connor, O'Connor, Mayberger First P.C. (Justin O'C. Corcoran of counsel), Albany, for respondents.
Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.
MEMORANDUM AND ORDER
In January 1990, plaintiffs hired defendants to plan and design a golf course in the Towns of Galway and Milton, Saratoga County. After construction began, the Army Corps of Engineers charged wetlands violations and ordered that all construction be halted. This action sounding in breach of contract, professional malpractice, negligence and fraud resulted. At issue on appeal is an order denying defendants' motion to dismiss the complaint for plaintiffs' alleged willful and contumacious refusal to obey two court orders directing discovery.
Upon our review of the record, we are unable to conclude that plaintiffs willfully or contumaciously refused to obey any court order such that the complaint should be dismissed. Rather, in response to a conditional order dated June 9, 1998, plaintiffs served a supplemental combined discovery response detailing the oral representations allegedly made by defendants regarding their expertise in the designing and planning of a golf course, most particularly as this expertise related to plaintiffs' obligations to obtain State and Federal permits for the project. Plaintiffs further detailed the acts and omissions forming the basis of their negligence claim, supplied expert witness information, supplemented responses to discovery requests and provided appropriate justification for presently unavailable financial information. Supreme Court, obviously satisfied that plaintiffs had sufficiently complied with all outstanding discovery orders, refused to dismiss the complaint. Finding no abuse of its considerable discretion in determining whether the harsh sanction of dismissal of the complaint was a warranted penalty for the alleged failure to comply with its discovery orders (see, Zletz v. Wetanson, 67 N.Y.2d 711; see also, CPLR 3126), we affirm. As a final matter, we note that the record does not support defendants' contention that dismissal is warranted because plaintiffs intentionally destroyed evidence.
Defendants' remaining contentions have been reviewed and rejected.
Cardona, P.J., Mercure, Spain and Graffeo, JJ., concur.
ORDERED that the order is affirmed, with costs.