Opinion
June 8, 2001.
(Appeal from Order of Supreme Court, Erie County, Michalek, J. — Default Judgment.)
PRESENT: GREEN, J.P., HAYES, HURLBUTT, SCUDDER AND LAWTON, JJ.
Order unanimously affirmed with costs. Memorandum:
Supreme Court properly denied plaintiffs' motion for a default judgment based upon defendants' failure to comply with the parties' agreed-upon discovery schedule. That "harsh remedy * * * is generally not warranted `absent a showing that the noncomplying party's conduct was willful or contumacious'" ( Gaylord Bros. v. RND Co., 134 A.D.2d 848, quoting Sawh v. Bridges, 120 A.D.2d 74, 78, appeal dismissed 69 N.Y.2d 852). Here, there was no showing that defendants' noncompliance was willful or contumacious ( see, Monaco v. Camie-Campbell, Inc., 256 A.D.2d 1214, 1216, lv dismissed in part and denied in part 93 N.Y.2d 887). The court also properly exercised its discretion, "in the interest of elementary fairness", in relieving defendants from the consequences of the stipulation made by their former attorney ( Matter of Way v. Town of Poughkeepsie, 75 A.D.2d 602, 604; see, Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 54-55).