Brooks v. City of New York

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated April 16, 2003, which granted the plaintiffs’ motion pursuant to CPLR 3126 to strike the answer for failure to timely comply with certain court-ordered discovery. The appeal brings up for review so much of an order of the same court dated August 7, 2003, as, upon renewal and reargument, adhered to the original determination (see CPLR 5517 [b]).

Ordered that the appeal from the order dated April 16, 2003, is dismissed, as that order was superseded by the order dated August 7, 2003, made upon renewal and reargument; and it is further,

Ordered that the order dated August 7, 2003, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3126 to strike the defendants’ answer. The defendants’ lack of diligence and approximately 7/2-year delay in complying with disclosure demands and numerous court orders raises an inference that their conduct was willful and contumacious (see Conch Assoc, v PMCC Mtge. Corp., 303 AD2d 538 [2003]; Birch Hill Farm v Reed, 272 AD2d 282 [2000]). The defendants failed to establish that they made diligent efforts to obtain the records and evidence that were produced on the eve of trial (see Donovan v City of New York, 239 AD2d 461 [1997]). Furthermore, the defendants’ delay in complying with the plaintiffs’ discovery demands prejudiced the plaintiffs (see McIntosh v City of New York, 275 AD2d 307 [2000]). Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.