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Noginsky Acupuncture, P.C. v Travelers Indem. Co.
2006 NY Slip Op 52089(U) [13 Misc 3d 135(A)]
Decided on November 2, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 3, 2006; it will not be published in the printed Official Reports.


Decided on November 2, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570138/06.

Noginsky Acupuncture, P.C., a/a/o Mirta Colmenares, Alba Diaz, Carlos Paniagua, Carmen Ramirez, Johana Marquez, Plaintiff-Respondent, - -

against

Travelers Indemnity Co. & Travelers Property Casualty Co., All d/b/a the Travelers, Defendant-Appellant.


Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), entered October 25, 2005, which denied its motion to strike the complaint and vacate the notice of trial, and granted plaintiff's cross motion for a protective order.


PER CURIAM:

Order (Julia I. Rodriguez, J.), entered October 25, 2005, modified to direct plaintiff to respond to interrogatory number 22; as so modified, affirmed, without costs.

Civil Court properly denied defendant's motion to strike the complaint, there being no showing that plaintiff's failure to respond to discovery demands was willful, contumacious or in bad faith, so as to warrant the drastic remedy of striking the pleadings (see Cespede v Mike & Jac Trucking Corp., 305 AD2d 222 [2003]; Commerce & Industry Ins. Co. v Lib-Com, Ltd., 266 AD2d 142 [1999]. However, plaintiff's cross motion for a protective order should have been denied as the information sought in interrogatory 22 is material and necessary to the issues in litigation (see CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]).

This constitutes the decision and order of the court.
Decision Date: November 2, 2006