Albert Zaretz et al., Respondents, v. Rodney A. Parker et al., Appellants, et al., Defendants

Albert Zaretz et al., Respondents, v Rodney A. Parker et al., Appellants, et al., Defendants. [691 NYS2d 354] [MAJORITY] —In an action, inter alia, to recover damages for libel, the defendants Rodney Andrew Parker and Forest Hills Gardens Corporation appeal from an order of the Supreme Court, Queens County (Dye, J.), dated March 8, 1995, which denied their motion for summary judgment dismissing the complaint due to the plaintiffs’ failure to comply with so much of an order of the same court (Lisa, J.), dated September 23, 1994, as, inter alia, directed them to serve their response to the certain interrogatories within a specified time period. Ordered that the appeal by the defendant Rodney Andrew Parker is dismissed, without costs or disbursements, as the complaint insofar as asserted against him was dismissed by order of the Supreme Court, Queens County, dated December 15, 1993, and it is further, Ordered that the order is affirmed insofar as appealed from by the defendant Forest Hills Gardens Corporation, without costs or disbursements. The Supreme Court correctly declined to grant summary judgment dismissing the complaint insofar as asserted against the defendant Forest Hills Gardens Corporation on the ground that the plaintiffs failed to comply with stated portions of a conditional order of preclusion since there was no showing of willful or contumacious conduct (see, Garcia v First Spanish Baptist Church, 259 AD2d 465; LaManna v Cahn Woolen Co., 249 AD2d 451; Pickens v St. John’s Hosp., 248 AD2d 693; cf., Garnett v Hudson Rent-A-Car, 258 AD2d 559; Ranfort v Peak Tours, 250 AD2d 747). Krausman, J. P., McGinity, Feuerstein and Smith, JJ., concur.