Lam v. Tang

Order, Supreme Court, New York County (Marylin Diamond, J.), entered September 30, 1996, which granted plaintiffs’ motion for disclosure sanctions to the extent of precluding defendant City from introducing evidence at trial “on any matters arising out of the documents and materials” plaintiffs sought to discover, unanimously affirmed, without costs.

Although defendant City was admittedly dilatory in responding to plaintiffs’ discovery demands and in complying with previous court orders, it was a proper exercise of discretion to deny plaintiffs’ motion to strike defendant’s answer and to issue instead an order of preclusion in the absence of evidence demonstrating that the failure to comply was willful or contumacious. The doctrine of law of the case does not bar this disposition based upon new considerations raised by defendant City. Concur—Rosenberger, J. P., Wallach, Nardelli, Williams and Colabella, JJ.