Opinion
2003-04924.
Decided April 12, 2004.
In an action to recover damages for personal injuries, the defendant Waste Services, Inc., n/k/a Eastern Waste of New York, Inc., appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated May 20, 2003, which granted the plaintiff's motion to strike its answer for failing to comply with the parties' stipulation regarding court-ordered discovery.
Morenus, Conway, Goren Brandman, Melville, N.Y. (Eileen M. Baumgartner of counsel), for appellant.
Joseph Edward Brady, P.C., Howard Beach, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.
Actions should be resolved on their merits whenever possible ( see Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 580), and the drastic remedy of striking an answer should not be employed without a showing that the failure to comply with discovery was willful, contumacious, or in bad faith ( see Simmons v. Pantoja, 306 A.D.2d 399, 400; Bach v. City of New York, 304 A.D.2d 686; Byrne v. City of New York, 301 A.D.2d 489, 490; cf. Reyes v. The Vanderbilt, 303 A.D.2d 391, 392). There was no showing that the appellant's alleged failure, if any, to produce a knowledgeable witness at the deposition was willful, contumacious, or in bad faith. The plaintiff's dissatisfaction with the answers given by the appellant's employee at the examination before trial was an insufficient basis upon which to conclude that the appellant willfully and contumaciously failed to comply with the stipulation ( see Automatic Mail Serv. v. Xerox Corp., 156 A.D.2d 623; E.K. Constr. Co. v. Town of N. Hempstead, 144 A.D.2d 427; Miller v. Duffy, 126 A.D.2d 527, 528).
Accordingly, the plaintiff's motion should have been denied.
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.