Eversley Prescott v Kramer Chemicals, Inc.

Prescott v Kramer Chems., Inc. 2004 NY Slip Op 08675 [12 AD3d 585] November 22, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Eversley Prescott et al., Respondents,
v
Kramer Chemicals, Inc., Defendant and Third-Party Plaintiff-Appellant. United Resin Corporation, Third-Party Defendant-Appellant.

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In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff and the third-party defendant separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated April 12, 2002, as denied their respective motions to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellants' contentions, they failed to demonstrate that the plaintiffs' failure to timely comply with various discovery requests and court orders was willful and contumacious. Accordingly, the Supreme Court providently exercised its discretion in refusing to dismiss the complaint for any failure to timely comply with the appellants' discovery requests and the discovery directed to be provided by the preliminary conference order (see Gorokhova v Belulovich, 267 AD2d 202 [1999]; Ploski v Riverwood Owners Corp., 255 AD2d 24, 28 [1999]).

The appellants' remaining contentions either are without merit or need not be reached in light of the foregoing. Smith, J.P., Luciano, Rivera and Lifson, JJ., concur.