Elvira Sisca v City of Yonkers, New York

Sisca v City of Yonkers, N.Y. 2005 NYSlipOp 09515 December 12, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Elvira Sisca et al., Respondents,
v
City of Yonkers, New York, Appellant.

—[*1]

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered October 20, 2004, which granted the plaintiffs' motion pursuant to CPLR 5015 (a) to vacate an order of the same court dated June 24, 2004, dismissing the complaint upon their default in appearing at a trial readiness conference.

Ordered that the order is affirmed, with costs.

Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter left to the sound discretion of the court (see CPLR 3126; Kihl v Pfeffer, 94 NY2d 118 [1999]). However, the penalty of dismissing a complaint for failure to disclose is extreme and should only be imposed where the failure has been willful, contumacious, or in bad faith (see DeCintio v Ahmed, 276 AD2d 463, 464 [2000]; Espinal v City of New York, 264 AD2d 806 [1999]). Where, as here, the record does not support the conclusion that the plaintiffs willfully or contumaciously refused to appear at the trial readiness conference, and it is well settled that actions should be resolved on the merits wherever possible (see Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [1993]), the Supreme Court providently exercised its discretion in granting the plaintiffs' motion to vacate its prior order of dismissal. Prudenti, P.J., S. Miller, Spolzino and Dillon, JJ., concur.