Opinion
2018–08738 Index No. 11870/14
08-28-2019
Mauro GIRALDO, et al., Respondents, v. HIGHMARK INDEPENDENT, LLC, et al., Defendants, Sublink, Ltd., Appellant.
Camacho Mauro Mulholland, LLP, New York, N.Y. (Kathleen M. Mulholland and Rachel M. Smith of counsel), for Appellant. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz and Shawn Alfano of counsel), for Respondents.
Camacho Mauro Mulholland, LLP, New York, N.Y. (Kathleen M. Mulholland and Rachel M. Smith of counsel), for Appellant.
Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz and Shawn Alfano of counsel), for Respondents.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The motion court has broad discretion to determine the nature and degree of the sanction to be imposed pursuant to CPLR 3126 (see Mears v. Long , 149 A.D.3d 823, 52 N.Y.S.3d 124 ). Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v. Boulevard Tenants Corp. , 96 A.D.3d 737, 738, 945 N.Y.S.2d 756 ). 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 Gutman v. Cabrera , 121 A.D.3d 1042, 1043, 995 N.Y.S.2d 180 ; Arpino v. F.J.F. & Sons Elec. Co., Inc. , 102 A.D.3d 201, 210, 959 N.Y.S.2d 74 ).
Here, the willful and contumacious character of the appellant's conduct can be inferred from its repeated failures to produce a representative for a deposition. The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' motion which was to strike the appellant's answer to the extent of precluding it from offering evidence at trial (see Rogers v. Howard Realty Estates, Inc. , 145 A.D.3d 1051, 42 N.Y.S.3d 866 ; Commisso v. Orshan , 85 A.D.3d 845, 925 N.Y.S.2d 612 ).
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.