Opinion
April 11, 1994
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements, on condition that the plaintiff's attorneys personally pay the defendant's attorneys the sum of $1,000 within 20 days after service upon the plaintiff's attorneys of a copy of this decision and order, with notice of entry; and it is further,
Ordered that in the event the plaintiff's attorneys fail to pay the $1,000, the plaintiff is granted 20 days after service upon it of a copy of this decision and order, with notice of entry, to pay the defendant's attorneys the sum of $1,000; and it is further,
Ordered that in the event that the $1,000 still remains unpaid, 20 days after service upon the plaintiff's attorneys and 20 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, then the order is reversed insofar as appealed from, with costs, the defendant's motion is granted, and the complaint is dismissed.
The defendant contends that the Supreme Court erred in denying its motion for an unconditional order of preclusion and summary judgment based upon the plaintiff's failure to comply with a conditional order of preclusion. We disagree. The record suggests that the plaintiff's cause of action may have merit (see, Richardson v Martorano, 184 A.D.2d 557; Darrell v Yurchuk, 174 A.D.2d 557), and there is no indication that the defendant was prejudiced by the delay, or that the plaintiff intended to abandon the action (see, Richardson v Martorano, supra; Darrell v Yurchuk, supra). Under these circumstances, and in view of the public policy in favor of resolving cases on the merits, the Supreme Court did not improvidently exercise its discretion in excusing the plaintiff's default (see, Albin v First Nationwide Network Mtge. Co., 188 A.D.2d 575; Cherry v New York City Hous. Auth., 183 A.D.2d 693; Glen Travel Plaza v Anderson Equip. Corp., 122 A.D.2d 327).
However, we find that the failure of the plaintiff's attorneys to promptly respond to the defendant's discovery demands should not be condoned, and accordingly, that the imposition of a monetary sanction is appropriate (see, Albin v First Nationwide Network Mtge. Co., supra). Thompson, J.P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.