

Law Offs. of Russell I. Marnell v Sanabria (2017 NY Slip Op 05153)





Law Offs. of Russell I. Marnell v Sanabria


2017 NY Slip Op 05153


Decided on June 22, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 22, 2017

Acosta, P.J., Renwick, Mazzarelli, Andrias, Manzanet-Daniels, JJ.


4102N 157206/14

[*1] Law Offices of Russell I. Marnell, Plaintiff-Respondent,
vAngela Sanabria, Defendant-Appellant.


Michael Ivanciu, Flushing, for appellant.
Rosenthal & Goldhaber, P.C., Hauppauge (Robert D. Goldhaber of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 18, 2015, which granted plaintiff's motion to strike defendant's answer pursuant to CPLR 3126 for failure to comply with outstanding discovery, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the motion denied.
Upon the record before us, it does not appear that the pro se defendant's conduct was willful and contumacious and, thus, the drastic sanction of striking her answer is not warranted, given the lack of prejudice to plaintiff as a result of
defendant's delay in answering the interrogatories (see Pezhman v Department of Educ. of The City of NY, 95 AD3d 625 [1st Dept 2012]; Cigna Prop. & Cas. Co. v Decoration & Design Bldg. Partnership, 268 AD2d 223 [1st Dept 2000]; Cianciolo v Trism Specialized Carriers, 274 AD2d 369 [2d Dept 2000]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 22, 2017
CLERK


