Supreme Court, Appellate Division, Second Department, New York.
WELLS FARGO ALARM SERVICES, Respondent,v.CONSUMERS DISTRIBUTING LTD., d/b/a Consumers Distributing, Appellant.
May 1, 1989
Alan E. Golomb, Mineola, for appellant. Kirschenbaum & Kirschenbaum, Garden City (Kenneth Kirschenbaum and Philip Rogers, of counsel), for respondent.
In an action to recover damages for the breach of certain contracts, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Roncallo, J.), dated May 27, 1988, as denied its cross motion pursuant to CPLR 3126 to dismiss the complaint for the plaintiff's failure to comply with certain court-ordered discovery and discovery notices and demands. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements, on condition that counsel for the plaintiff personally pay $1,000 to the defendant within 30 days after service upon it of a copy of this decision and order, with notice of entry; in the event that the condition is not complied with, the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the cross motion to dismiss the complaint is granted. Under the circumstances, we find that the Supreme Court did not improvidently exercise its discretion in refusing to impose the harsh sanction of dismissing the plaintiff's complaint pursuant to CPLR 3126. However, the dilatory tactics employed by the plaintiff's counsel warrant the imposition of a financial sanction against them (see, Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736; River Park Assoc. v. Meyerbank Elec. Co., 116 A.D.2d 709, 497 N.Y.S.2d 762; Raphael v. Cohen, 111 A.D.2d 155, 488 N.Y.S.2d 467).
BROWN, J.P., and LAWRENCE, EIBER and SULLIVAN, JJ., concur.
543 N.Y.S.2d 299 (Mem), 150 A.D.2d 372
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