Opinion
July 20, 1987
Appeal from the Supreme Court, Nassau County (Kelly, J.).
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs to the appellant, the motion is granted, and upon renewal, the order dated July 2, 1985 is vacated and the motion of Transport Taxi and the cross motion of the Port Authority to dismiss the complaint are denied.
By order dated July 2, 1985, the court granted the motion of Transport Taxi and the cross motion of the Port Authority to dismiss the plaintiff's complaint unless, inter alia, the plaintiff caused copies of certain of the appellant's medical records to be served upon the defendants' attorneys within 90 days of the date of the order.
A review of the record indicates that, at the time of the court's order, the appellant had provided the defendants with duly executed authorizations for the release of the records in question, which were not then within the appellant's custody or control. Although the records forwarded in response to the authorizations were insufficient, the insufficiency was not the result of any action or inaction on the part of the appellant or his attorneys. Indeed, the appellant was subsequently able to obtain certain of the records and expeditiously provided them to the defendants.
The appellant's failure to comply with the order dated July 2, 1985 was clearly not willful or contumacious (see, CPLR 3126). Therefore, it was error to impose the harsh sanction of dismissal of the complaint based upon such failure (see, e.g., Miller v County of Orange, 120 A.D.2d 713).
While the appellant's motion was denominated as one for reargument, it is apparent that the additional information submitted made it one for renewal, and we have properly treated it so (see, Patterson v. Town of Hempstead, 104 A.D.2d 975, 976; Golden v. Transport Taxi Limousine Serv., 80 A.D.2d 870). Thompson, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.