[*1]
Warren-Rosenfeld v Nail's Noble, Inc.
2008 NY Slip Op 50357(U) [18 Misc 3d 140(A)]
Decided on February 26, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ
07-281.

Martha Warren-Rosenfeld and Jerry Rosenfeld, Plaintiffs-Respondents,

against

Nail's Noble, Inc., Shawn Jeon, Eric Jeon and Didi Kim, Defendants-Appellants,


Defendants appeal from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered February 28, 2007, as denied their motion to dismiss the complaint or for preclusion for failure to comply with discovery.


Per Curiam.

Order (Joan M. Kenney, J.), entered February 28, 2007, affirmed, with $10 costs.

The denial of defendants' motion to dismiss the complaint or for preclusion was an appropriate exercise of discretion. Plaintiffs' conduct was not so willful or contumacious as to warrant the extreme sanctions sought (see e.g. Paz v City of New York, 38 AD3d 269 [2007]; Irizarry v Ashar Realty Corp., 14 AD3d 323 [2005]). Although plaintiffs may have been tardy in providing discovery, they ultimately complied substantially with defendants' demands, the only outstanding discovery being an independent medical examination, which was delayed by the parties' scheduling conflicts.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: February 26, 2008