Opinion
2019-12469, 2020-02804 Index No. 621663/17
04-06-2022
Nicole SANABRIA, etc., respondent, v. NYSARC, INC., et al., appellants.
Hardin, Kundla, McKeon & Poletto, P.A., New York, NY (David C. Blaxill of counsel), for appellants. Winkler Kurtz, LLP, Port Jefferson Station, NY (Jason W. Hake of counsel), for respondent.
Hardin, Kundla, McKeon & Poletto, P.A., New York, NY (David C. Blaxill of counsel), for appellants.
Winkler Kurtz, LLP, Port Jefferson Station, NY (Jason W. Hake of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from (1) an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated September 16, 2019, and (2) an order of the same court dated January 29, 2020. The order dated September 16, 2019, granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer and for judgment in the plaintiff's favor and against the defendants on the issue of liability due to the defendants’ failure to provide certain discovery as directed by a conditional order dated February 13, 2019. The order dated January 29, 2020, insofar as appealed from, denied the defendants’ motion for leave to reargue their opposition to the plaintiff's motion pursuant to CPLR 3126, and denied that branch of the defendants’ separate motion which was to strike the plaintiff's note of issue and certificate of readiness.
ORDERED that the appeal from so much of the order dated January 29, 2020, as denied the defendants’ motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated September 16, 2019, is affirmed; and it is further,
ORDERED that the order dated January 29, 2020, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In November 2017, the plaintiff, Nicole Sanabria, as temporary guardian of the person and property of Gretchen Stanko, commenced this action to recover damages for personal injuries Stanko allegedly sustained from a fall down stairs on August 22, 2016, while a resident at a group home/community residence for persons with intellectual and developmental disabilities operated by the defendants. In July 2019, the plaintiff moved pursuant to CPLR 3126 to strike the defendants’ answer and for judgment in her favor and against the defendants on the issue of liability due to the defendants’ failure to provide certain discovery as directed by a conditional order dated February 13, 2019. In an order dated September 16, 2019, the Supreme Court granted the plaintiff's motion. The defendants moved for leave to reargue their opposition to the plaintiff's motion pursuant to CPLR 3126, and separately moved, inter alia, to strike the note of issue and certificate of readiness that had been filed by the plaintiff pursuant to a directive by the court in the September 16, 2019 order. In an order dated January 29, 2020, the court, among other things, denied the defendants’ motion for leave to reargue and that branch of their separate motion which was to strike the note of issue and certificate of readiness. The defendants appeal from the September 16, 2019 and January 29, 2020 orders.
Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (see id. § 3126[3] ). The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Ambroise v. Palmana Realty Corp., 197 A.D.3d 1226, 153 N.Y.S.3d 572 ; Wolf v. Flowers, 122 A.D.3d 728, 728–729, 996 N.Y.S.2d 169 ; Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" ( Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813, 815, 144 N.Y.S.3d 81 ; see Matter of Apostolidis, 193 A.D.3d 1039, 1040, 147 N.Y.S.3d 654 ; Marino v. Armogan, 179 A.D.3d 664, 666, 113 N.Y.S.3d 613 ). "The willful and contumacious character of a party's conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time" ( Wolf v. Flowers, 122 A.D.3d at 729, 996 N.Y.S.2d 169 ; see Ambroise v. Palmana Realty Corp., 197 A.D.3d at 1226, 153 N.Y.S.3d 572 ; Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d 976, 977, 986 N.Y.S.2d 589 ).
Here, in light of the defendants’ repeated failure to fully comply with the plaintiff's proper discovery demands and the Supreme Court's conditional order dated February 13, 2019, there was a clear showing that the defendants engaged in willful and contumacious conduct. Accordingly, the court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer and for judgment in the plaintiff's favor and against the defendants on the issue of liability (see Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d 1021, 149 N.Y.S.3d 217 ; Ritornato v. Ritornato, 186 A.D.3d 1422, 1424, 128 N.Y.S.3d 860 ; Ahmed v. Ahmed, 175 A.D.3d 1363, 1364–1365, 109 N.Y.S.3d 200 ; Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 896 N.Y.S.2d 152 ).
The defendants’ contention that their motion, denominated as one for leave to reargue, should have been treated as a motion for leave to renew, is without merit (see Pino v. Korn, 248 A.D.2d 520, 520, 669 N.Y.S.2d 863 ). As the denial of a motion for leave to reargue is not appealable, the appeal from so much of the order dated January 29, 2020, as denied leave to reargue must be dismissed (see Liang v. Yi Jing Tan, 155 A.D.3d 1022, 65 N.Y.S.3d 455 ; Pacella v. THC Realty Dev., 295 A.D.2d 329, 743 N.Y.S.2d 890 ).
The defendants’ remaining contention is without merit.
BARROS, J.P., RIVERA, WOOTEN and FORD, JJ., concur.