Opinion
July 27, 1989
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
In this action for breach of contract, defendants appeal from an order which struck their answer for willful and contumacious failure to timely comply with an order for discovery, and defendants further appeal from that portion of a second order which, after vacating a default judgment entered against them, directed an inquest on the issue of damages. Plaintiffs cross-appeal the latter order, to the extent that it vacated the default judgment.
Upon examination of the record and consideration of the conduct of counsel for defendant Barry D. Lesser, who represented both defendants during the discovery proceedings at issue, we conclude that a reversal, as conditioned hereinabove, is warranted.
We reach this determination in view of defendants' eventual compliance with the discovery order, which, while tardy, preceded the hearing on the imposition of sanctions. (See, Marsh v Lee Sons, 34 A.D.2d 985.) Thus, the record does not reflect the "[e]xtreme conduct * * * required before imposition of the ultimate penalty — striking the answer in this instance". (Dauria v City of New York, 127 A.D.2d 459, 460.)
In light of the foregoing determination, we decline to address, at this time, the issues raised in plaintiffs' cross appeal, which would be rendered moot upon reinstatement of defendants' answer.
Concur — Sullivan, J.P., Asch, Milonas, Kassal and Rosenberger, JJ.