Roof v. Bogdanski

—Order unanimously reversed on the law without costs, motion denied and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Supreme Court abused its discretion by resolving the issue raised in an affirmative defense against defendant because of defendant’s failure to comply with plaintiffs’ demands for discovery and prior conditional orders of the court. This harsh sanction should not be resorted to in the absence of a showing that the noncomplying party’s conduct was "willful, contumacious or due to bad faith” (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506, 507; see also, Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374; Gaylord Bros. v RND Co., 134 AD2d 848; Town of E. Greenbush v Ashland Chem. Co., 99 AD2d 604). Here, the record supports defendant’s assertions that he made good faith efforts to comply with plaintiffs’ numerous and voluminous discovery demands. The record reveals numerous items of correspondence from defense attorney informing plaintiffs’ attorney of the progress he was making toward compliance, as well as many telephone conversations between the attorneys. Defendant’s conduct does not indicate a willful refusal to comply (cf., Henderson v Stilwell, 116 AD2d 861, lv denied 68 NY2d 606). Consequently, the matter must be remitted to Supreme Court for the imposition of an appropriate sanction in light of this decision. (Appeal from Order of Supreme Court, Cayuga County, Contiguglia, J.—Strike Affirmative Defense.) Present—Doerr, J. P., Green, Pine, Balio and Lawton, JJ.