Opinion
May 9, 2000.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered August 19, 1999, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to strike defendant's answer, directed entry of judgment in plaintiff's favor on the issue of liability, and set the matter down for an inquest as to damages, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion denied and the answer reinstated.
David M. Schwarz, for Plaintiff-Respondent.
Herbert Rubin, for Defendant-Appellant.
SULLIVAN, P.J., NARDELLI, MAZZARELLI, SAXE, JJ.
While it is true that the imposition of sanctions for discovery misfeasance is a matter within the motion court's discretion (Palmenta v. Columbia Univ., 266 A.D.2d 90, 698 N.Y.S.2d 657; Gomez v. New York City Housing Auth., 217 A.D.2d 110, 114), the extreme sanction of dismissal is warranted only where a clear showing has been made that non-compliance with a discovery order was willful, contumacious, or due to bad faith (see, Stone v. Speiser, 267 A.D.2d 157, 699 N.Y.S.2d 865;Corner Realty 30/7 v. Bernstein Mgmt. Corp., 249 A.D.2d 191; Corsini v. U-Haul Intl., 212 A.D.2d 288, 291, lv dismissed in part, denied in part, 87 N.Y.2d 964; Rubin v. Pan Am. World Airways, 128 A.D.2d 765).
In this matter, we find that the motion court improvidently exercised its discretion in striking defendant's answer as the record contains no evidence that defendant's actions were willful, contumacious, or taken in bad faith. Indeed, each witness produced by defendant possessed some degree of knowledge about the brickwork where the accident purportedly occurred and the subject premises in general. Further, plaintiff was advised as early as 1997 that a retired employee of defendant, Jose Rodriguez, was the Supervisor of Grounds at the time of the alleged incident and would likely have extensive knowledge of the subject brickwork, yet plaintiff failed to pursue a non-party deposition.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.