Opinion
06-15-2016
Elizabeth FIELD, etc., plaintiff, v. Philip Q. BAO, etc., et al., appellants.
Simmons Jannace DeLuca, LLP, Hauppauge, N.Y. (William T. Collins III of counsel), for appellants Philip Q. Bao, Kevin T. Watkins, and Rahuldev S. Bhalla. Connick, Myers, Hass & McNamee, PLLC, Mineola, N.Y. (Glenn P. McNamee of counsel), for appellants Kevin J. Schiller and North Suffolk Family Medical Care, PLLC.
Simmons Jannace DeLuca, LLP, Hauppauge, N.Y. (William T. Collins III of counsel), for appellants Philip Q. Bao, Kevin T. Watkins, and Rahuldev S. Bhalla.
Connick, Myers, Hass & McNamee, PLLC, Mineola, N.Y. (Glenn P. McNamee of counsel), for appellants Kevin J. Schiller and North Suffolk Family Medical Care, PLLC.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants Philip Q. Bao, Kevin T. Watkins, and Rahuldev S. Bhalla appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated June 12, 2015, as denied their unopposed motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with court-ordered discovery, and the defendants Kevin J. Schiller and North Suffolk Family Medical Care, PLLC, separately appeal, as limited by their brief, from so much of the same order as denied their unopposed motion for the same relief as to them.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the defendants' separate motions pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them are granted.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122–123, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Umar v. Ohrnberger, 72 A.D.3d 1066, 900 N.Y.S.2d 349 ; Joseph v. Iannace, 6 A.D.3d 502, 503, 774 N.Y.S.2d 419 ; Ordonez v. Guerra, 295 A.D.2d 325, 326, 743 N.Y.S.2d 156 ). The drastic remedy of dismissing a complaint for a plaintiff's failure to comply with court-ordered discovery is warranted where a party's conduct is shown to be willful and contumacious (see Rowell v. Joyce, 10 A.D.3d 601, 781 N.Y.S.2d 682 ; My Carpet, Inc. v. Bruce Supply Corp., 8 A.D.3d 248, 777 N.Y.S.2d 308 ). The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse (see Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 ; Workman v. Town of Southampton, 69 A.D.3d 619, 620, 892 N.Y.S.2d 481 ; Horne v. Swimquip, Inc., 36 A.D.3d 859, 859, 830 N.Y.S.2d 218 ).
Here, the plaintiff's willful and contumacious conduct can be inferred from her repeated failure, over a period of more than two years, to respond to any of the defendants' discovery demands, even after being directed to do so by court order, as well as her failure to respond to the defendants' separate motions to dismiss the complaint and, consequently, the absence of any reasonable excuse for her noncompliance (see Morgenstern v. Jeffsam Corp., 78 A.D.3d 913, 914, 912 N.Y.S.2d 231 ; Batshever v. Jafar, 73 A.D.3d 1108, 900 N.Y.S.2d 887 ; Horne v. Swimquip, Inc., 36 A.D.3d 859, 830 N.Y.S.2d 218 ; Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125 ; Bodine v. Ladjevardi, 284 A.D.2d 351, 726 N.Y.S.2d 129 ; Birch Hill Farm, Inc. v. Reed, 272 A.D.2d 282, 283, 707 N.Y.S.2d 188 ).
Accordingly, the Supreme Court should have granted the defendants' separate motions pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.