(concurring in part and dissenting in part). I cannot agree with the majority that dismissal of the plaintiffs action is required because of the misdeeds of her attorney. Although I do not condone the course of conduct engaged in by the plaintiffs counsel in this case, I believe that a remedy should be fashioned which would adequately sanction the attorney and prevent undue prejudice to the defendants without depriving the plaintiff, who is personally blameless, of her day in court. Accordingly, I would modify the order appealed from so as to preclude the plaintiff from offering any evidence at the trial regarding the CAT scan performed in 1983 of an alleged calcified herniated disc at L3-L4 of her lumbosacral spine. Further, if the defendants be so advised, I would allow them to submit the plaintiff to a new CAT scan, at her own expense, with a copy of that CAT scan, and any report made in connection therewith, to be furnished to the defendants. Finally, I would direct the plaintiffs attorney to personally pay to each defendant a financial sanction in the amount of $1,500.
In this personal injury action, the defendant Bridges served a proper notice for discovery and inspection of a CAT scan which had been performed upon the plaintiff by one of her doctors (CPLR 3120 [a] [1] [i]). However, the plaintiffs counsel apparently ignored the notice and proceeded instead to serve and file a note of issue and statement of readiness which incorrectly indicated that there were no outstanding discovery requests. As a result, the defendant Bridges moved to strike the action from the Trial Calendar, and Special Term (Kuffner, J.), by order dated February 27, 1984, granted the motion to the extent of directing the plaintiff to supply the defendant Bridges with the CAT scan, to be reviewed by his expert and then returned to the plaintiff. A copy of the order, with notice of entry, was duly served upon the plaintiff on March 6, 1984.
Upon the plaintiffs continued failure to comply with the notice and the subsequent order dated February 27, 1984, the *81defendant Bridges, joined by the defendants Bove and Messerole, moved once again to strike the case from the Trial Calendar. In response to the motion, the plaintiff’s counsel proffered an authorization for release of the CAT scan, although the prior order had required the plaintiff to produce the actual CAT scan. By order dated May 29, 1984, Special Term struck the case from the calendar in order to permit the defendants Messerole and Bove to conduct certain discovery unrelated to the CAT scan, although the court apparently determined that the furnishing of the authorization constituted sufficient compliance with its prior order.
The defendants thereafter moved pursuant to CPLR 3126 to dismiss the complaint by reason of the plaintiff’s continued failure to produce the CAT scan. In his affirmation in opposition to the motion, the plaintiff’s counsel disclosed, for the first time, that the CAT scan in question had been stolen on or about March 19 or 20, 1984, but counsel did not indicate when he had first learned of the theft. It is clear, however, that the theft occurred over five months after service of the original notice for discovery and inspection and about two weeks after service of the order of February 27, 1984, which directed production of the CAT scan. By order dated September 21, 1984, the court granted the motion and dismissed the complaint, determining that the conduct of the plaintiff’s counsel had been "willful and contemptuous”. The court found that the plaintiff’s attorney had simply disregarded the notice and two prior orders, and had not furnished the authorization for production of the CAT scan as he had claimed to have done.
The conduct of the plaintiff’s counsel in this case can properly be characterized as willful and contumacious, so as to warrant the imposition of a sanction pursuant to CPLR 3126 (see, e.g., Williams v Coren, 112 AD2d 419; Parascandola v Kaplan, 108 AD2d 738, 739; Kramme v Town of Hempstead, 100 AD2d 447, 451). However, Special Term’s finding that counsel failed to comply with two prior orders is not supported by the record. While there is no doubt that the notice for discovery and inspection and the order directing production of the CAT scan were disregarded, the second order effectively discharged the plaintiff’s counsel with respect to the CAT scan, upon his representation that an authorization for its release had been furnished to the defendants. Moreover, there is no evidence in the record demonstrating that the authorization was not furnished.
*82Nevertheless, I am mindful that the attorney’s disregard of the notice and first order and his filing of a statement of readiness which incorrectly represented that disclosure had been completed, made the previously possible disclosure of the CAT scan impossible, because reasonably diligent compliance with either the notice or order would have enabled the disclosure to occur prior to the date on which the CAT scan was allegedly stolen (see, Ferraro v Koncal Assoc., 97 AD2d 429). Moreover, by failing to promptly advise the defendants of the alleged theft, and leading them to believe that disclosure was still possible, counsel was responsible for a considerable amount of unnecessary motion practice.
Because it appears that Special Term misapprehended the extent of counsel’s neglect, and because of the fact that long-established public policy favors resolution of actions on their merits (see, Mineroff v Macy’s & Co., 97 AD2d 535, 536), I conclude that the sanction of dismissal imposed in this case was unduly harsh, and I would modify the order so as to impose the less severe sanction of preclusion (see, CPLR 3126 [2]; Olshansky v Ravera, 107 AD2d 740). In addition, I view this as an appropriate case to impose a financial sanction against offending counsel (see, Gabrelian v Gabrelian, 108 AD2d 445, appeal dismissed 66 NY2d 741; Mineroff v Macy’s & Co., supra, at p 536; memorandum of Off of Ct Admin, 1983 McKinney’s Session Laws of NY, at 3014-3015, citing Cockfield v Apotheker, 81 AD2d 651).
I must also register my disagreement with my colleagues’ conclusion that affirmance of the order dismissing the complaint is necessary in order to effectuate the expedient and efficient disposition of cases under the Individual Assignment System (hereinafter IAS). Although the statute (CPLR 3126) provides the trial court with broad discretion in fashioning penalties for failure to comply with discovery notices and orders (see, Zletz v Wetanson, 67 NY2d 711, 713), this court has not hesitated to act where, in our view, the imposition of a particular sanction by the trial court constituted an improvident exercise of its discretion (see, Duffett v Duffett, 114 AD2d 994; Parascandola v Kaplan, 108 AD2d 738, supra; Baumann v Dee, 100 AD2d 504). I am unable to find any evidence that the IAS was intended to abrogate or limit the power heretofore exercised by an intermediate appellate court to review discretionary rulings and, in appropriate cases to substitute its own discretion for that of a trial court. In fact, it has been suggested that appellate review is a necessary component of *83the IAS, serving as a safeguard to correct abuses of discretion by Trial Judges (see, Siegel, Dec. 1985 [No. 312], NY St L Dig 3; Mar. 1986 [No. 315] NY St L Dig 2). I simply cannot agree that this court must ignore injustice in the interest of preserving the independence and authority of the trial courts and ensuring the success of the IAS.
Weinstein and Rubin, JJ., concur with Thompson, J.; Bracken, J., concurs in part and dissents in part, and votes to grant the defendants’ motion only to the extent of precluding the plaintiff from offering any evidence at trial regarding a CAT scan performed in 1983 as to an alleged calcified herniated disc at L3-L4 of the plaintiff’s lumbosacral spine, and, as so modified, to affirm the order appealed from, on condition that the plaintiff’s attorney personally pays to each defendant the sum of $1,500 and the plaintiff submits to a new CAT scan at her own expense and furnishes a copy of said CAT scan and any reports made in connection therewith to the defendants, with an opinion in which Lazer, J. P., concurs.
Ordered that the order of the Supreme Court, Richmond County, dated September 21, 1984, is affirmed, with costs.