Opinion
Nos. 2007-05230, 2007-08663.
March 25, 2008.
In an action to recover damages for podiatric malpractice, the third-party defendant appeals from (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), entered May 2, 2007, which granted the motion of the defendant third-party plaintiff pursuant to CPLR 3126 to strike his answer to the third-party complaint for failure to comply with a prior discovery order, and (2) an order of the same court entered August 20, 2007, which denied his motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue.
Geisler Gabriele, LLP, Garden City, N.Y. (Joseph Randazzo of counsel), for third-party defendant-appellant.
Stanley J. Zawada, Whitestone, N.Y., defendant third-party plaintiff-respondent pro se.
Before: Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ.
Ordered that the appeal from the order entered August 20, 2007 is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered May 2, 2007 is reversed, on the law and in the exercise of discretion, with costs, and the defendant third-party plaintiffs motion pursuant to CPLR 3126 to strike the answer to the third-party complaint is denied.
The determination whether to strike a pleading for a failure to comply with court-ordered discovery lies within the sound discretion of the trial court ( see CPLR 3126; Byrne v City of New York, 301 AD2d 489, 490; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370; Vancott v Great Atl. Pac. Tea Co., 271 AD2d 438; Brown v United Christian Evangelistic Assn., 270 AD2d 378, 379). However, the drastic remedy of striking a pleading is not appropriate where, as here, there is no clear showing that the alleged failure to comply with discovery demands was willful or contumacious ( see CPLR 3126; Harris v City of New York, 211 AD2d 663, 664). Here, counsel for the third-party defendant affirmed that a copy of medical records generated by the third-party defendant had been sent to the third-party plaintiff on January 18, 2007 and submitted a copy of the transmittal letter accompanying the records, which established that discovery was timely made under the terms of the stipulation. Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendant third-party plaintiffs motion.