Caplin v. Ranhofer

Kassal, J. (concurring).

Despite the numerous orders requiring plaintiffs to serve a separate bill of particulars upon each of the attorneys appearing for the separate hospitals and the separate physicians, and the failure to properly respond to the interrogatories served by defendant Volkswagen, we are of the opinion that it was not plaintiffs’ purpose to forfeit their right to a determination on the merits of the issues presented by *822the pleadings. For that reason, and because the law favors the disposition of actions on the merits wherever possible (Newman v Chartered New England Corp., 63 AD2d 617; Rodriguez v Sklar, 56 AD2d 537), we think the ultimate sanction imposed under CPLR 3126 was too severe. We feel that plaintiffs should be afforded one final chance to comply. Accordingly, we reverse, conditioned upon the payment of costs and compliance with the orders.