Pyfrom v. Tishman Construction Co.

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered on or about December 14, 1998, which granted plaintiffs motion to strike defendants’ answer, directed defendants to comply with plaintiffs discovery demands and denied defendants’ cross motion for a protective order, unanimously modified, on the law and the facts, to deny plaintiffs motion to strike defendants’ answer and to reinstate said answer, and otherwise affirmed, without costs. The motion court erred in granting plaintiffs motion to strike defendants’ answer for discovery noncompliance because there was no evidence that defendants’ failure to disclose was willful or contumacious (see, New v Scores Entertainment, 255 AD2d 108; Berman v Szpilzinger, 180 AD2d 612). The motion court, however, properly denied defendants’ cross motion for a protective order because there was nothing unreasonable or improper about plaintiff’s discovery demands (see, CPLR 3103 [a]). Concur — Nardelli, J. P., Tom, Lerner, Rubin and Friedman, JJ.