Mateo v. T & H Enterprises

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), [412] entered February 28, 2008, which, to the extent appealed from, denied defendant T & H Enterprise’s motion to dismiss the complaint, unanimously affirmed, without costs. Dismissal is the most drastic sanction contemplated by the CPLR for failure to comply with discovery and should be imposed only when the conduct of the offending party was willful, contumacious, or in bad faith (see Palacios v New York City Tr. Auth., 50 AD3d 520 [2008]; Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 [2003]; Tsai v Hernandez, 284 AD2d 116, 117 [2001]). Here, the motion court’s August 15, 2007 order directed completion of all depositions of plaintiffs, as well as all independent medical examinations (IMEs), by November 14, 2007 or plaintiffs would be precluded from giving testimony at trial. Given that all plaintiffs were deposed and had appeared for orthopedic IMEs by November 14, 2007, and that neurological IMEs have now been completed, defendant failed to show any willful, contumacious or bad faith conduct on the part of plaintiffs and it was well within the motion court’s discretion to allow plaintiffs 45 additional days to appear for neurological IMEs (see Nussbaum v D’Amico, 29 AD3d 449 [2006]). We have considered defendant’s remaining contentions and find them unavailing. Concur — Andrias, J.E, Friedman, Buckley, Catterson and Acosta, JJ.