Opinion
March 31, 1999
Appeal from Order of Supreme Court, Erie County, Whelan, J. — Discovery.
Order unanimously reversed on the law without costs, answer and third-party complaint reinstated and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the complaint. "[M]ultiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause" (Public Serv. Mut. Ins. Co. v. Windsor Place Corp., 238 A.D.2d 142, 143). In any event, the conflicting affidavits create a question of fact regarding plaintiff's status as a special employee ( see, Gadley v. U.S. Sugar Co., 210 A.D.2d 983).
The court abused its discretion, however, in granting without a hearing plaintiff's motion to strike the answer and third-party defendant's motion to dismiss the third-party complaint based on defendant's failure to produce certain requested discovery materials. Trial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed ( see, Andruszewski v. Cantello, 247 A.D.2d 876). While the relief granted to plaintiff and third-party defendant is a sanction available to the court upon defendant's failure to comply with discovery requests ( see, CPLR 3126), it is well settled that the harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious ( see, Quinn v. Broder, 225 A.D.2d 1110; Gaylord Bros. v. RND Co., 134 A.D.2d 848). We cannot determine on the record before us whether a discovery default occurred, and, if so, whether it was deliberate or contumacious. Nor are we able to determine the effect of such default, if any, on plaintiff and third-party defendant; "[t]he general rule is 'that the demanding party should not be granted more relief for nondisclosure than is reasonably necessary to protect legitimate interests'" ( Gaylord Bros. v. RND Co., supra, at 849). We therefore reverse the order in appeal No. 1 and remit the matter to Supreme Court for a hearing before a different Justice to determine those issues and the appropriate sanction, if any ( see, Sparacino v. Minnet, 212 A.D.2d 522, 523).
Present — Denman, P. J., Green, Pine, Hayes and Hurlbutt, JJ.