Opinion
2012-04-24
Lina MONTEMURRO, appellant, et al., plaintiff, v. MEMORIAL SLOAN–KETTERING CANCER CENTER, et al., respondents, et al., defendants.
John J. Ciafone, Astoria, N.Y., for appellant. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for respondents Memorial Sloan–Kettering Cancer Center, Memorial Hospital for Cancer and Allied Disease, and Manjit S. Bains.
John J. Ciafone, Astoria, N.Y., for appellant. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for respondents Memorial Sloan–Kettering Cancer Center, Memorial Hospital for Cancer and Allied Disease, and Manjit S. Bains. Chesney & Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), for respondent Michael Melgar.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiff Lina Montemurro appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated March 29, 2010, as granted those branches of the separate motions of the defendant Michael Melgar, and the defendants Memorial Sloan–Kettering Cancer Center, Memorial Hospital for Cancer and Allied Disease, and Manjit S. Bains, which were to strike the complaint insofar as asserted against each of them by her pursuant to CPLR 3126 for failure to comply with discovery orders.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
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, 700 N.Y.S.2d 87, 722 N.E.2d 55; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious ( see Commisso v. Orshan, 85 A.D.3d 845, 845, 925 N.Y.S.2d 612; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196; Byam v. City of New York, 68 A.D.3d 798, 800, 890 N.Y.S.2d 612). The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders ( see Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612; Giano v. Ioannou, 78 A.D.3d 768, 771, 911 N.Y.S.2d 398; Northfield Ins. Co. v. Model Towing & Recovery, 63 A.D.3d 808, 809, 881 N.Y.S.2d 135; McArthur v. New York City Hous. Auth., 48 A.D.3d 431, 431, 851 N.Y.S.2d 271; Bomzer v. Parke–Davis, Div. of Warner Lambert Co., 41 A.D.3d 522, 522, 839 N.Y.S.2d 110; Maiorino v. City of New York, 39 A.D.3d 601, 602, 834 N.Y.S.2d 272; Cafaro v. Emergency Servs. Holding, Inc., 11 A.D.3d 496, 498, 782 N.Y.S.2d 806).
Contrary to the appellant's contentions, the willful or contumacious character of the conduct at issue could properly be inferred by the court from her repeated failures, without an adequate excuse, to comply with discovery demands and the court's discovery orders to provide certain disclosure ( see Quinones v. Long Is. Jewish Med. Ctr., 90 A.D.3d 632, 933 N.Y.S.2d 907; Bort v. Perper, 82 A.D.3d 692, 694, 918 N.Y.S.2d 151; Howe v. Jeremiah, 51 A.D.3d 975, 975–976, 858 N.Y.S.2d 788; cf. Hoi Wah Lai v. Mack, 89 A.D.3d 990, 933 N.Y.S.2d 712; Batshever v. Jafar, 73 A.D.3d 1108, 900 N.Y.S.2d 887, cert. denied ––– U.S. ––––, 132 S.Ct. 138, 181 L.Ed.2d 57; Hanlon v. Rosenthal, 7 A.D.3d 758, 759, 776 N.Y.S.2d 906). Accordingly, the Supreme Court properly granted those branches of the separate motions of the defendant Michael Melgar, and the defendants Memorial Sloan–Kettering Cancer Center, Memorial Hospital for Cancer and Allied Disease, and Manjit S. Bains, which were to strike the complaint insofar as asserted against each of them by the appellant pursuant to CPLR 3126.
The appellant's remaining contentions are not properly before this Court.