Opinion
May 10, 2001.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about March 8, 2000, and revised March 13, 2000, which granted plaintiff's motion to strike defendants' answer, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, plaintiff's motion denied and the answer reinstated on condition that, within 20 days of service of a copy of this order with notice of entry, defendants (a) pay plaintiff's attorney $750 and (b) provide the discovery sought. Appeal from order, same court and Justice, entered on or about March 14, 2000, which denied defendants' application for an order to show cause for leave to vacate and/or renew and reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.
Alexander J. Wulwick, for plaintiff-respondent.
Brendan T. Fitzpatrick, for defendants-appellants.
Before: Ellerin, J.P., Lerner, Saxe, Buckley, Friedman, JJ.
Defendant's appeal from the order that denied its order to show cause to vacate and/or renew and reargue the order striking its answer must be dismissed since no appeal lies from an ex parte order (CPLR 5701[a][2]). Defendants' noncompliance with court orders and plaintiff's demands for disclosure, while undeniably sanctionable (CPLR 3126), was not shown conclusively to be willful, contumacious or in bad faith, and thus constitutes something less than the "extreme conduct" required before the ultimate penalty of striking the answer is imposed (see, Dauria v. City of New York, 127 A.D.2d 459, 460). We deem it appropriate, in view of our policy favoring resolution of disputes on their merits, to grant defendants one final chance to comply with plaintiff's discovery demands, on condition that, within 20 days of service of a copy of this order with notice of entry, defendants pay plaintiff's attorney $750 and provide plaintiff with the requested disclosure.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.