Kim v. Sotheby's Inc. , 727 N.Y.S.2d 312 ( 2001 )

—Order, Supreme Court, New York County (Richard Braun, J.), entered May 5, 2000, which ordered plaintiffs motion to restore withdrawn, unanimously reversed, on the law and the facts, without costs, and the motion granted. Appeal from order, same court (Elliott Wilk, J.), entered September 14, 2000, which denied plaintiffs motion to restore to active status, unanimously dismissed, without costs, as academic in view of the foregoing.

We restore plaintiffs causes of action alleging breach of warranty and breach of a settlement agreement, because the record shows that they were mistakenly dismissed, as well as mistakenly deemed to be withdrawn, when plaintiff moved to restore them on December 16, 1999 (see, CPLR 2001, 5019 [a]). Defendant was aware that the dismissal was in error, and will not be prejudiced by restoration. In addition, defendant has not shown that plaintiffs failure to furnish some requested materials during discovery was willful, contumacious or in bad faith so as to warrant the drastic remedy of striking of the pleadings or dismissal of the action (see, Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193). We note that defendant never moved for an order to compel discovery. Concur— Rosenberger, J. P., Williams, Wallach, Lerner and Friedman, JJ.