McAllister v. City of New York

Full title: JAMARR McALLISTER, Appellant, v. CITY OF NEW YORK et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 23, 1998

248 A.D.2d 598 (N.Y. App. Div. 1998)

669 N.Y.S.2d 918

Opinion

March 23, 1998

Appeal from the Supreme Court, Kings County (Hutcherson, J.).

Ordered that the order is affirmed, with costs.

The record demonstrates that the parties engaged in substantial discovery. The defendants made significant efforts to comply fully with disclosure demands and a preliminary conference order, and a witness apparently became unavailable during the plaintiff's own substantial delay in making a substitution in accordance with CPLR 1015 for the death of the infant plaintiff's mother and natural guardian. Under these circumstances, we discern no improvident exercise of discretion in the Supreme Court's determination that the defendants' conduct during disclosure did not constitute willful or contumacious noncompliance warranting the imposition of a sanction pursuant to CPLR 3126 (see, e.g., Harris v. City of New York, 211 A.D.2d 663; Lestingi v. City of New York, 209 A.D.2d 384).

We have considered the plaintiff's remaining contention and find it to be without merit.

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.