Opinion
CA 03-00423
October 2, 2003.
Appeal from that part of an order of Supreme Court, Cayuga County (Corning, J.), entered October 18, 2002, that denied plaintiffs' motion to strike defendant's answer.
WILLIAM D. FIREMAN, P.C., NEW YORK (WILLIAM D. FIREMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied plaintiffs' motion to strike defendant's answer for failure to comply with the court's prior order directing discovery. "[T]he harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious" ( Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042; see Sloniger v. Niagara Mohawk Power Corp., 306 A.D.2d 842). Plaintiffs failed to make such a conclusive showing.