Despite a Plaintiff's Noncompliance With Discovery Order Extreme Sanction of Dismissal Is Unwarranted
In Leinoff v. 208 W. 29th St. Assocs. (243 AD2d 418) the First Department recognized that a carrier was the real party in interest in an action, although not a party.
The Leinoff action arose out of a water damage claim filed by the plaintiff tenant corporation as an insured with its insurer as a result of a leak in the defendant's sprinkler system on property leased to the appellant plaintiff.
The insurer brought a subrogation action in the name of its insured against the property owner.
The property owner defendant was not satisfied with the individual plaintiff's compliance with its discovery demands and the court granted the defendant's motion to dismiss the complaint on this basis unless plaintiff complied with the demands.
The plaintiff did not comply and the complaint was dismissed.
On appeal the Court held that despite the plaintiff's noncompliance with the discovery orders, the extreme sanction of dismissal was unwarranted and that it was too soon to impose such a drastic sanction on the subrogee insurer, who was the real party in interest, when the noncompliance was the fault of an individual who was not a named insured.