Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered August 25, 2011, which, inter alia, denied their motion to extend their time to comply with a conditional preclusion order and granted defendants' cross motions to dismiss the complaint pursuant to CPLR 3126.

Per Curiam.

Order (Margaret A. Chan, J.), entered August 25, 2011, modified to deny defendants' cross motions and reinstate the complaint on condition that plaintiffs appear for deposition within 60 days after service of a copy of this order with notice of entry; as modified, order affirmed, without costs.

Defendants did not conclusively show that the elderly plaintiffs' failure to appear for deposition, in accordance with the conditional preclusion order, was willful, contumacious or in bad faith. In view of plaintiffs' demonstrated efforts to schedule their depositions so as to accommodate their dual residency in New York and California, and where two previous deposition dates had been adjourned through no fault of the plaintiffs, the extreme sanction of dismissing the complaint was unwarranted (see Blanding v Return Hous. Corp., 277 AD2d 92 [2000]; cf. Albinder v Crescent Props., Inc., 245 AD2d 145 [1997]). In the circumstances, we afford plaintiffs a further (and final) opportunity to comply with their discovery obligations.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur
Decision Date: July 24, 2012