Opinion
2001-02945
Submitted January 23, 2002.
April 8, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 6, 2000, which denied their motion to vacate an order of the same court, dated May 11, 2000, sua sponte dismissing the action for failure to comply with court-ordered discovery.
Connors Connors, P.C., Staten Island, N.Y. (Maria E. Cannon of counsel), for appellants.
Ralph P. Casella, P.C., Staten Island, N.Y. (Vincent A. Moccio of counsel), for respondent Christopher Tardio.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, LEO F. McGINITY, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" is a matter within the discretion of the Supreme Court (CPLR 3126; see Zletz v. Wetanson, 67 N.Y.2d 711; DeJulio v. Wulf, 260 A.D.2d 425; Kubacka v. Town of North Hempstead, 240 A.D.2d 374). The willful and contumacious conduct of the plaintiff Michael Dacey may be inferred from his repeated failure to comply with the court-ordered discovery schedule, and his failure to appear at scheduled independent medical examinations without adequate excuse (see Nowak v. Veira, 289 A.D.2d 383 [2d Dept, Dec. 17, 2001]; Polanco v. Duran, 278 A.D.2d 397, 398; Frias v. Fortini, 240 A.D.2d 467). Accordingly, the Supreme Court providently exercised its discretion in dismissing the complaint, and in denying the plaintiffs' motion to vacate the prior order (see CPLR 2221).
ALTMAN, J.P., SMITH, KRAUSMAN, McGINITY and COZIER, JJ., concur.