Netti v. Auburn Enlarged City School District — 309 A.D.2d 1143

Majority

p. 1143

Fourth Department,

October, 2003

(October 2, 2003)

Bryan T. Netti, an Infant, by His Mother and Natural Guardian, Deborah L. Netti, et al., Appellants, v Auburn Enlarged City School District, Respondent.

[764 NYS2d 886]

Appeal from that part of an order of Supreme Court, Cayuga County (Corning, J.), entered October 18, 2002, that denied plaintiffs’ motion to strike defendant’s answer.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs’ motion to strike defendant’s answer for failure to comply with the court’s prior order directing discovery. “[T]he harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious” (Gadley v U.S. Sugar Co., 259 AD2d 1041 , 1042 [1999]; see Sloniger v Niagara Mohawk Power Corp., 306 AD2d 842 [2003]). Plaintiffs failed to make such a conclusive showing. Present — Hurlbutt, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.