CPLR § 3126

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered
October 16, 2008, which, in an action by a tenant against its landlord
and managing agent for property damages and business interruption
caused by water infiltration, granted defendants' motion pursuant to
CPLR 3126 to dismiss plaintiff's complaint for noncompliance with
disclosure orders unless plaintiff provided certain discovery, mostly
related to its business interruption claim, by October 28, 2008,
unanimously modified, on the facts, to grant the motion unless, within
30 days after service of a copy of this order, plaintiff pays
defendants' attorney $5,000, and otherwise affirmed, with costs in
favor of defendants, payable by plaintiff.

Defendants acknowledge that plaintiff provided the discovery
responses by October 28, 2008, and do not assert prejudice as a result
of general delay, but argue that the action should have been dismissed
outright because of plaintiff's failure to explain its noncompliance
with prior court orders directing discovery. While the drastic relief
that defendants seek was properly denied for lack of a clear showing
that the noncompliance was willful or contumacious (see Delgado v City of New York, 47 AD3d 550 [2008]), plaintiff's inexcusable laxness "should not escape adverse consequences" (Figdor v City of New York, 33 AD3d 560, 561 [2006]; see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]), and we modify accordingly.