Frye v. City of New York

The IAS Court did not improvidently exercise its discretion in declining to strike defendants’ answer pursuant to CPLR 3126 for noncompliance with prior disclosure orders inasmuch as plaintiff failed to establish that defendants’ failure to appear at court-ordered examinations before trial was willful or contumacious, and since defendants offered a reasonable excuse for their good-faith, albeit belated, efforts to comply (Rossi v Lin, 189 AD2d 868; Bassett v Bando Sangsa Co., 103 AD2d 728). Although the record indicates that defendants were less than diligent in meeting court deadlines, these derelictions did not warrant imposition of the drastic sanction of striking their 183 answer absent a clear showing that the conduct was willful or contumacious (Bako v V. T. Trucking Co., 143 AD2d 561, 562; Dauria v City of New York, 127 AD2d 459). Concur—Murphy, P. J., Wallach, Rubin, Williams and Mazzarelli, JJ.