Law Offs. of Russell I. Marnell v Sanabria

Law Offs. of Russell I. Marnell v Sanabria 2017 NY Slip Op 05153 Decided on June 22, 2017 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 June 22, 2017
Acosta, P.J., Renwick, Mazzarelli, Andrias, Manzanet-Daniels, JJ.
4102N 157206/14

[*1] Law Offices of Russell I. Marnell, Plaintiff-Respondent,

v

Angela Sanabria, Defendant-Appellant.

Michael Ivanciu, Flushing, for appellant.

Rosenthal & Goldhaber, P.C., Hauppauge (Robert D. Goldhaber of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 18, 2015, which granted plaintiff's motion to strike defendant's answer pursuant to CPLR 3126 for failure to comply with outstanding discovery, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the motion denied.

Upon the record before us, it does not appear that the pro se defendant's conduct was willful and contumacious and, thus, the drastic sanction of striking her answer is not warranted, given the lack of prejudice to plaintiff as a result of

defendant's delay in answering the interrogatories (see Pezhman v Department of Educ. of The City of NY, 95 AD3d 625 [1st Dept 2012]; Cigna Prop. & Cas. Co. v Decoration & Design Bldg. Partnership, 268 AD2d 223 [1st Dept 2000]; Cianciolo v Trism Specialized Carriers, 274 AD2d 369 [2d Dept 2000]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 22, 2017

CLERK