Opinion
2017–00513 Index No. 7935/09
05-08-2019
EMPIRE ENTERPRISES I.J.J.A., INC., Appellant, v. DAIMLER BUSES OF NORTH AMERICA, INC., et al., Respondents (and a third party action).
Charles A. Termini, Oceanside, N.Y., for appellant. Skarzynski Black, LLC, New York, N.Y. (Joshua D. Yeager, pro hac vice, Thomas H. Cellilli III and Paul V. Miletic of counsel), for respondents.
Charles A. Termini, Oceanside, N.Y., for appellant.
Skarzynski Black, LLC, New York, N.Y. (Joshua D. Yeager, pro hac vice, Thomas H. Cellilli III and Paul V. Miletic of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), dated November 22, 2016. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants' contention that the appeal must be dismissed for failure to comply with CPLR 5526 is without merit (cf. P.B. #7, LLC v. 231 Fourth Ave. Lyceum, LLC, 167 A.D.3d 1028, 91 N.Y.S.3d 164 ; Reyes v. Eleftheria Rest. Corp., 162 A.D.3d 808, 75 N.Y.S.3d 90 ; Matter of Lynch, 152 A.D.3d 690, 55 N.Y.S.3d 909 ).
In general, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the sound discretion of the motion court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading (see Park Side Constr. Contrs., Inc. v. Bryan's Quality Plus, LLC, 156 A.D.3d 804, 68 N.Y.S.3d 90 ; Friedman, Harfenist, Langer & Kraut v. Richard Bruce Rosenthal, 79 A.D.3d 798, 914 N.Y.S.2d 196 ). The drastic remedy of dismissing a complaint pursuant to CPLR 3126(3) for failure to comply with court-ordered disclosure should be granted only where the conduct of the plaintiff is shown to be willful and contumacious (see Moray v. City of Yonkers, 76 A.D.3d 618, 906 N.Y.S.2d 508 ; Kyung Soo Kim v. Goldmine Realty, Inc., 73 A.D.3d 709, 901 N.Y.S.2d 89 ; Novick v. DeRosa, 51 A.D.3d 885, 858 N.Y.S.2d 371 ). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time (see Honghui Kuang v. MetLife, 159 A.D.3d 878, 881, 74 N.Y.S.3d 88 ; Teitelbaum v. Maimonides Med. Ctr., 144 A.D.3d 1013, 43 N.Y.S.3d 66 ; Cioffi v. S.M. Foods, Inc., 142 A.D.3d 526, 36 N.Y.S.3d 664 ). Given the plaintiff's delay in complying with discovery, the misrepresentations made by its president throughout these proceedings, and the delay caused by the plaintiff's multiple substitutions of counsel, the Supreme Court providently exercised its discretion in finding that the plaintiff's conduct was willful and contumacious, and in granting that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint (see Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 211, 959 N.Y.S.2d 74 ; Kyung Soo Kim v. Goldmine Realty, Inc., 73 A.D.3d at 710, 901 N.Y.S.2d 89 ; Cano v. BLF Realty Holding Corp., 243 A.D.2d 390, 663 N.Y.S.2d 202 ; Homburger v. Levitin, 130 A.D.2d 715, 515 N.Y.S.2d 825 ).
CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.