Mabey v. Winthrop University Hospital

In an action to recover damages for medical malpractice, etc., the defendant Phillips Medical Systems North America, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated March 13, 2002, as denied its motion to vacate the note of issue and to strike the answer of the defendant Winthrop University Hospital for failure to comply with discovery demands. Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs. The Supreme Court properly found that Winthrop University Hospital (hereinafter Winthrop) was not guilty of willful and contumacious conduct in responding to the discovery notice or the interrogatories. Thus, the appellant’s motion, inter alia, to strike Winthrop’s answer was properly denied (see Bettan v Geico Gen. Ins. Co., 296 AD2d 469, lv dismissed 99 NY2d 552; Faith v Boston Old Colony Ins. Co., 76 AD2d 900). Altman, J.P., Smith, Luciano, Adams and Cozier, JJ., concur.