Tantaro v. All My Children, Inc. , 19 N.Y.S.3d 159 ( 2015 )

Tantaro v All My Children, Inc. (2015 NY Slip Op 08345)

Tantaro v All My Children, Inc.

2015 NY Slip Op 08345

Decided on November 17, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2015
Gonzalez, P.J., Sweeny, Manzanet-Daniels, Kapnick, JJ.

16157 157893/12

[*1] Rachel Tantaro, Plaintiff-Appellant,

v

All My Children, Inc., doing business as Fifth Avenue Beauty, et al., Defendants-Respondents.

Peter H. Paretsky, New York, for appellant.

Gannon, Rosenfarb & Drossman, New York (Sophia Candela of counsel), respondents.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered January 6, 2014, which granted plaintiff's motion to strike defendants' answer for failing to comply with discovery to the extent of marking the parties' deposition dates as final, unanimously affirmed, without costs.

Plaintiff failed to establish that defendants' alleged failure to comply with disclosure obligations was willful, contumacious or in bad faith (see Perez v New York City Tr. Auth., 73 AD3d 529 [2010]). Given the fact that the record demonstrates that the delays in discovery were caused by both parties, it cannot be said that Supreme Court abused its discretion in determining that striking defendants' answer was inappropriate and instead granting plaintiff's motion to strike to the extent of imposing the lesser sanction of marking the deposition dates as final (see DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581 [1st Dept 2011]; Islar v New York City Bd. of Educ.,64 AD3d 405 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2015

CLERK