Opinion
March 23, 1987
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Ordered that the order dated August 21, 1986, is reversed, on the law, without costs or disbursements, the motion to renew is granted, and, upon renewal, the orders dated July 26, 1984, October 1, 1984, January 22, 1985, and March 25, 1985, respectively, are vacated and the complaint is reinstated, on condition that the plaintiff's current law firm pay the defendant $250 within 30 days after service upon it of a copy of this decision and order, with notice of entry, and the appeals from the orders dated January 22, 1985 and March 25, 1985, are dismissed, without costs or disbursements, as academic, in light of our determination on the appeal from the order dated August 21, 1986; and it is further,
Ordered that in the event that condition is not complied with, the order dated January 22, 1985, is affirmed insofar as appealed from, and the orders dated March 25, 1985, and August 21, 1986, respectively, are affirmed, with one bill of costs.
In view of the public policy favoring the resolution of actions, wherever possible, on the merits, litigants who have not replied expeditiously to notices for discovery and inspection are afforded reasonable latitude before imposition of the harshest available sanction, the dismissal of a complaint (Bassett v Bando Sangsa Co., 103 A.D.2d 728). That extreme sanction is generally warranted only where there has been a showing that the failure to comply with a disclosure order was willful, contumacious or due to bad faith (see, Sawh v. Bridges, 120 A.D.2d 74, 78; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 697; Delaney v. Automated Bread Corp., 110 A.D.2d 677, 678; Bassett v. Bando Sangsa Co., supra).
While the plaintiff's failure to comply with prior demands for disclosure as well as with the conditional orders of dismissal dated May 30, 1984, and July 26, 1984, should not be condoned, there is no evidence that such failure was willful or contumacious. Rather, the plaintiff's noncompliance was due largely to the incapacity of her former counsel. Under the circumstances, we conclude that the dismissal of the complaint rather than the imposition of monetary sanctions was too harsh.
In view of the delay in taking appropriate ameliorative action and the resulting prejudice to the defendant, we are of the view that the imposition of a $250 sanction against the plaintiff's current counsel is warranted. Mangano, J.P., Bracken, Weinstein and Rubin, JJ., concur.