Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered September 19, 2008, which granted plaintiff's motion to strike the answer pursuant to CPLR 3126.

Per Curiam.

Order (Joan M. Kenney, J.), entered September 19, 2008, reversed, without costs, motion denied, answer reinstated, and plaintiff directed to complete defendant's deposition within 45 days of service of a copy of this order, with notice of entry, and to file a notice of trial within 30 days thereafter.

"[T]he drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to
comply with discovery demands is willful, contumacious or in bad faith" (Harris v City of New York, 211 AD2d 663, 664 [1995]), a showing not made on this record. Defendant herein adequately explained that, despite "multiple searches," he was unable to locate any additional documents beyond those already produced in response to plaintiff's broadly framed "Third Notice to Produce," thus countering plaintiff's bald claims of willful and contumacious conduct. In view of defendant's substantial compliance with plaintiff's most recent set of discovery demands, as well as this Court's prior decision (18 Misc 3d 127[A], 2007 NY Slip Op 52424[U] [2007]), and since it appears that the highly contentious and seemingly unending discovery in this long pending dental malpractice case is attributable in large measure to plaintiff's own [*2]overzealous litigation practices, the ultimate sanction of striking the answer is unwarranted (see Ploski v Riverwood Owners Corp., 284 AD2d 316 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 19, 2009