[*1]
Rudolph v Hirsch
2007 NY Slip Op 50722(U) [15 Misc 3d 134(A)]
Decided on April 5, 2007
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 5, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., McCOOE, KLEIN HEITLER, JJ
570700/06.

Tyrone Rudolph and Jessie McClain-Rudolph, Plaintiffs-Respondents,

against

Andrea G. Hirsch, Esq., Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered February 17, 2006, which denied her motion to dismiss the complaint for failure to comply with discovery orders.


PER CURIAM

Order (Jose A. Padilla, Jr., J.), entered February 17,, 2006, affirmed, with $10 costs.

We agree that the drastic sanction of dismissal was unwarranted in the absence of a showing that plaintiffs' failure to comply with the court's discovery orders was willful or contumacious (see CPLR 3126; Irrizary v Asher Realty Corp., 14 AD3d 323 [2005]). In the event that any audio or video tapes of conversations among the parties are shown to exist, it is for the trial court to determine the appropriate sanction.

This constitutes the decision and order of this court.
Decision Date: April 5, 2007