Ayala v Lincoln Med. & Mental Health Ctr.

Ayala v Lincoln Med. & Mental Health Ctr. 2012 NY Slip Op 01195 Decided on February 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2012
Friedman, J.P., Sweeny, Renwick, DeGrasse, Román, JJ.
6846N 14078/05 15189/06

[*1]Benita Ayala, Plaintiff-Appellant,

v

Lincoln Medical & Mental Health Center, et al., Defendants-Respondents.



Benita Ayala, Plaintiff-Appellant,

v

Dr. Avinash Jadhav, etc., et al., Defendants-Respondents.




Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac
of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Norman
Corenthal of counsel), for respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered July 8, 2010, which, in this consolidated medical malpractice action, to the extent appealed from as limited by the briefs, denied plaintiff's motion to strike defendants' answers, unanimously affirmed, without costs.

Striking the answers would have been inappropriate, given the lack of a clear showing that defendants' failure to comply with discovery orders was willful, contumacious, or in bad faith (see Delgada v City of New York, 47 AD3d 550 [2008]). Indeed, there is evidence in the record that defendants attempted to comply with their disclosure obligations, but did not possess the requested discovery pertaining to plaintiff's total knee replacement surgery (see Scott v King, 83 AD3d 510, 511 [2011]; see also Harris v City of New York, 211 AD2d 662, 663 [1995]). In light of the strong preference that matters be decided on the merits (Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2011]), the court providently exercised its discretion in [*2]imposing a less drastic sanction (see Palmenta v Columbia Univ., 266 AD2d 90, 91 [1999]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2012

CLERK