Opinion
2012-02-16
Benita AYALA, Plaintiff–Appellant, v. LINCOLN MEDICAL & MENTAL HEALTH CENTER, et al., Defendants–Respondents.Benita Ayala, Plaintiff–Appellant, v. Dr. Avinash Jadhav, etc., et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered July 8, 2010, which, in this consolidated medical malpractice action, to the extent appealed from as limited by the briefs, denied plaintiff's motion to strike defendants' answers, unanimously affirmed, without costs.
Striking the answers would have been inappropriate, given the lack of a clear showing that defendants' failure to comply with discovery orders was willful, contumacious, or in bad faith ( see Delgado v. City of New York, 47 A.D.3d 550, 850 N.Y.S.2d 401 [2008] ). Indeed, there is evidence in the record that defendants attempted to comply with their disclosure obligations, but did not possess the requested discovery pertaining to plaintiff's total knee replacement surgery ( see Scott v. King, 83 A.D.3d 510, 511, 923 N.Y.S.2d 33 [2011]; see also Harris v. City of New York, 211 A.D.2d 662, 663, 622 N.Y.S.2d 464 [1995] ). In light of the strong preference that matters be decided on the merits ( Banner v. New York City Hous. Auth., 73 A.D.3d 502, 503, 900 N.Y.S.2d 857 [2011] ), the court providently exercised its discretion in imposing a less drastic sanction ( see Palmenta v. Columbia Univ., 266 A.D.2d 90, 91, 698 N.Y.S.2d 657 [1999] ).
We have considered plaintiff's remaining arguments and find them unavailing.