Opinion
2011-12-6
Amy LASKIN, appellant, v. Loretta FRIEDMAN, et al., respondents.
Stephen H. Frankel, Mineola, N.Y. (Nicholas E. Tzaneteas of counsel), for appellant. Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for respondents.
Stephen H. Frankel, Mineola, N.Y. (Nicholas E. Tzaneteas of counsel), for appellant. Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), dated September 15, 2010, which denied her motion to strike the defendants' answer pursuant to CPLR 3126(3) for failure to comply with discovery demands and based on the spoliation of evidence.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3126(3) to strike the defendants' answer for failure to comply with discovery demands. “[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” ( Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d 726, 726–727, 864 N.Y.S.2d 79 [internal quotation marks omitted]; see Denoyelles v. Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868). Here, the plaintiff failed to demonstrate that the defendants' action in discarding the subject porch swing was the product of willful, contumacious, or bad faith conduct ( see Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d at 727, 864 N.Y.S.2d 79; Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868).
Further, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the defendants' answer on the ground of spoliation of the porch swing after being on notice that such evidence might be necessary for future litigation ( see Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d at 727, 864 N.Y.S.2d 79; Barnes v. Paulin, 52 A.D.3d 754, 755, 860 N.Y.S.2d 221; Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868). The absence of the porch swing did not leave the plaintiff “prejudicially bereft” of a means of proving her claim ( Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d at 727, 864 N.Y.S.2d 79; see Barnes v. Paulin, 52 A.D.3d at 755, 860 N.Y.S.2d 221; Denoyelles v. Gallagher, 40 A.D.3d at 1027, 834 N.Y.S.2d 868; Dennis v. City of New York, 18 A.D.3d 599, 795 N.Y.S.2d 615; cf. Velasquez v. Brocorp., Inc., 283 A.D.2d 423, 423, 723 N.Y.S.2d 870; Yi Min Ren v. Professional Steam–Cleaning, 271 A.D.2d 602, 602–603, 706 N.Y.S.2d 169).