Opinion
June 22, 1990
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Dillon, P.J., Denman, Pine, Lawton and Davis, JJ.
Order unanimously modified as an exercise of discretion, and as modified affirmed without costs, in accordance with the following memorandum: The record does not establish that plaintiff's failure to comply with defendant's discovery demands or the trial court's discovery order was willful or contumacious; therefore, we conclude that the trial court did not abuse its discretion in denying defendant's motion to dismiss plaintiff's complaint or preclude plaintiff from introducing any medical evidence (see, CPLR 3126; Donner v. 50 Tom Corp., 99 A.D.2d 504; Wood v. Ford Nursing Home Co., 79 A.D.2d 841; see also, Gaylord Bros. v. RND Co., 134 A.D.2d 848; Shamash v. Ohrbach's Inc., 57 A.D.2d 531). Because plaintiff's counsel's failure to comply with the prior discovery order caused substantial delays, in the exercise of our discretion we impose a monetary sanction in the sum of $500 on plaintiff's counsel (see, Crow-Crimmins-Wolff Munier v. County of Westchester, 110 A.D.2d 871, 872-873; Siebert v. 60 Sutton Corp., 99 A.D.2d 950).