Hodson v Wasserman

[*1] Hodson v Wasserman 2007 NY Slip Op 50115(U) [14 Misc 3d 133(A)] Decided on January 26, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., DAVIS, SCHOENEFELD, JJ
570097/06.

Hope Elizabeth Hodson, Plaintiff-Respondent,

against

Alan J. Wasserman, D.D.S., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered April 10, 2006, which granted plaintiff's motion to strike defendant's answer pursuant to CPLR 3126.

PER CURIAM:

Order (Geoffrey D. Wright, J.), entered April 10, 2006, reversed, with $10 costs, motion denied, answer reinstated, and judgment on liability vacated.

Civil Court improvidently exercised its discretion in striking defendant's answer absent a clear showing that defendant's conduct was willful, contumacious or in bad faith (see Denoyelles v Gallagher, 30 AD3d 367 [2006]). Inasmuch as the record reveals that defendant substantially complied with prior disclosure orders and plaintiff's discovery demands, and that "both sides are partially at fault for the highly contentious and seemingly unending discovery in this case" (Ploski v Riverhead Owners Corp., 284 AD2d 316 [2001]), the drastic remedy of striking a pleading was unwarranted. We note that the affirmation submitted by defendant's counsel in opposition to the motion to strike should have been considered since counsel had personal knowledge of the facts regarding his client's efforts to comply with discovery.

This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: January 26, 2007