Opinion
2004-02467.
September 6, 2005.
In an action to recover damages for personal injuries and conversion, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Jackson, J.), dated February 24, 2004, which, upon an order of the same court dated November 25, 2003, adhering, upon reargument and renewal, to its prior determination in an order dated April 8, 2003, granting the defendant's motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.
David A. Zelman, Brooklyn, N.Y., for appellants.
Cullen and Dykman Bleakley Platt, LLP, New York, N.Y. (David Elbaum and Cynthia B. Okrent of counsel), for defendant third-party plaintiff-respondent.
Brea Yankowitz, Floral Park, N.Y. (Arthur I. Yankowitz and Patrick J. Brea of counsel), for third-party defendant-respondent.
Before: Adams, J.P., Ritter, Goldstein and Fisher, JJ., concur.
Ordered that the judgment is reversed, on the law and as a matter of discretion, without costs or disbursements, the order dated November 25, 2003, is vacated, the motion to dismiss the complaint is denied, the complaint is reinstated, and the order dated April 8, 2003, is modified accordingly.
The record does not support the conclusion that the plaintiffs' failure to timely respond to some of the defendants' demands for disclosure was willful, contumacious, or in bad faith. Thus, the Supreme Court improvidently exercised its discretion in dismissing the complaint pursuant to CPLR 3126 based on such failure ( see Felipe v. 2820 W. 36th St. Realty Corp., 7 AD3d 483).