Dominick Pulsone v North Shore Towers Apartments Incorporated

Pulsone v North Shore Towers Apts. Inc. 2006 NY Slip Op 04063 [29 AD3d 883] May 23, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Dominick Pulsone, Appellant,
v
North Shore Towers Apartments Incorporated, Defendant and Third-Party Plaintiff-Respondent. New Yorker Contractors, Inc., Third-Party Defendant. (And Another Third-Party Action.)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated January 6, 2005, as denied that branch of his motion which was to strike the answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful and contumacious (see CPLR 3126 [3]; Jenkins v City of New York, 13 AD3d 342 [2004]). Here, the plaintiff failed to make such a showing. Further, the plaintiff did not demonstrate that the alleged loss of certain documents was the result of intentional or negligent spoliation (see Dennis v City of New York, 18 AD3d 599, 600 [2005]; Mylonas v Town of Brookhaven, 305 AD2d 561, 563 [2003]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the answer. Adams, J.P., Rivera, Skelos and Lifson, JJ., concur.