Opinion
12460 12460A Index No. 805102/16 Case No. 2019-4406
11-24-2020
Jacqueline LYOUSSI, Plaintiff–Respondent, v. Ngozi ETUFUGH, D.D.S., et al., Defendants–Appellants.
Vigorito, Barker, Patterson Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for appellants. Law Office of Paul T. Davis, Lake Success (Paul T. Davis of counsel), for respondent.
Vigorito, Barker, Patterson Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for appellants.
Law Office of Paul T. Davis, Lake Success (Paul T. Davis of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Oing, Kennedy, JJ.
Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 17, 2019, and August 27, 2019, which denied defendants' motions to dismiss the complaint or preclude plaintiff from offering evidence at trial for failure to comply with discovery orders, unanimously affirmed, without costs.
The motion court providently exercised its discretion in declining to strike the complaint or preclude plaintiff from offering evidence for failure to comply with discovery orders. The court was not beholden to a prior order that warned that failure to comply would be construed as willful and contumacious but was not a conditional order that would have obviated the need for a determination of willfulness (see Board of Mgrs. of the 129 Lafayette St. Condominium v. 129 Lafayette St., LLC, 103 A.D.3d 511, 959 N.Y.S.2d 430 [1st Dept. 2013] ). Further, the history of this litigation establishes that any non-compliance on plaintiff's part was not willful, contumacious or in bad faith (see Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept. 2011] ). Plaintiff complied with the court's discovery orders more often than not by providing timely responses that generally evidenced a good-faith effort to address outstanding discovery meaningfully (see Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ).