Michael Conway v. Brooklyn Union Gas Company

—In an action to recover damages, inter alia, for negligence, the defendants Brooklyn Union Gas Company and Gas Energy, Inc., separately appeal from an order of the Supreme Court, Kings County (Krausman, J.), dated April 26, 1993, which denied their separate motions to dismiss the complaint for failure to comply with a prior discovery order and granted the plaintiffs’ cross motion for an extension of time to complete discovery and file a note of issue.

Ordered that the appeal by the defendant Gas Energy, Inc., is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is affirmed insofar as reviewed, without costs or disbursements; and it is further,

Ordered that the respondents’ time to comply with the order dated April 26, 1993, is extended until 15 days after service upon them of a copy of this decision and order, with notice of entry.

It was not an improvident exercise of discretion for the court to grant the plaintiffs’ cross motion for an extension of time in which to complete discovery and file a note of issue and to deny the motion by the defendant Brooklyn Union Gas Company to dismiss the complaint as there was no wilful or contumacious conduct (see, Sabatello v Frescatore, 200 AD2d 939, 940). Bracken, J. P., Rosenblatt, O’Brien and Altman, JJ., concur.