Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, J.), entered June 25, 2009, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3126.

Per Curiam.

Order (Jose A. Padilla, J.), entered June 25, 2009, reversed, without costs, complaint reinstated, and the motion granted to the extent of requiring plaintiff, within 45 days of service on plaintiff of a copy of this order with notice of entry, (1) to respond in writing to paragraphs one and eight of defendants' March 11, 2005 demand for discovery and inspection; (2) to provide defendants with copies of her federal tax returns for the years 1998 through 2003; and (3) to appear for a deposition, the date, time and location of which shall be designated by Civil Court.

In view of the strong judicial policy favoring the determination of actions on their merits, a court should not resort to the drastic remedy of striking a pleading for failure to comply with disclosure directives unless the noncompliance is established to be both deliberate and contumacious (see Marks v Vigo, 303 AD2d 306 [2003]). On this record, and since it appears that the disclosure delays in this long-pending action were attributable to both sides, we cannot say that the ultimate penalty of striking the complaint is commensurate with the nature and extent of plaintiff's failure to comply with her disclosure obligations (see Christian v City of New York, 269 AD2d 135 [2000]; see also Weissman v 20 E. 9th St. Corp., 48 AD3d 242 [2008]). We therefore reinstate the complaint, and direct plaintiff to provide the above noted disclosure and appear, as directed by Civil Court, for a deposition. In light of the acrimonious tenor of this litigation and the inability of the parties to complete disclosure, we direct that plaintiff's deposition be supervised by a court-appointed referee (see Goldin v Mejia, 294 AD2d 231, 232 [2002]).

Plaintiff's argument that defendants committed frivolous conduct within the meaning of [*2]22 NYCRR 130-1.1 is without merit. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 18, 2009