Opinion
May 24, 1990
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Although plaintiff's successive excuses for its failure to turn over certain requested documents until confronted with legal action suggest evasiveness on its part in complying with existing judicial orders compelling discovery, the record nonetheless lacks sufficient evidence establishing plaintiff's willful noncompliance with the discovery orders (see, Sony Corp. v Savemart, Inc., 59 A.D.2d 676, 677). A review of the record indicates the discovery process was apparently interrupted by, inter alia, an audit of plaintiff's financial records by the city's Comptroller's office (which records were sought by defendant) and by the internal reorganization of plaintiff's counsel's law firm. In view of these seemingly nonwillful delays or obstructions of discovery, the trial court properly exercised its broad discretion in denying defendant's motion to dismiss. (See generally, Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892.)
Additionally, we find unpreserved for review the city's argument, raised for the first time on appeal, that the court improperly granted plaintiff's motion for vacatur of its default where plaintiff failed to submit an affidavit of merit in support of its motion. The inadvertent nature of plaintiff's default in appearing in opposition to the city's prior motion is reflected in the record, which indicates that the calendar clerk erroneously advised plaintiff's counsel to submit its opposition papers to the wrong Judge.
Concur — Kupferman, J.P., Carro, Rosenberger, Ellerin and Rubin, JJ.