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McCRACKEN v. NITTO KOHKI USA, INC.

271 A.D.2d 510 (2000)

706 N.Y.S.2d 348

DANIEL McCRACKEN et al., Respondents, v. NITTO KOHKI USA, INC., et al., Appellants, et al., Defendant. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 10, 2000.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellants' motion pursuant to CPLR 3126 (3) to dismiss the complaint insofar as asserted against them. The appellants failed to establish that the conduct of the injured plaintiff in delaying a physical examination by their physician was willful, contumacious, deliberate, or in bad faith (see, Little v Long Is. Jewish Med. Ctr.,

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