Opinion
2014-05534
11-12-2014
Michael WOLF, et al., appellants, v. Frank J. FLOWERS, et al., respondents.
Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants. Craig P. Curcio, Middletown, N.Y. (Ryan Bannon of counsel), for respondents.
Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants.
Craig P. Curcio, Middletown, N.Y. (Ryan Bannon of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
Opinion In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Rosa, J.), dated April 8, 2014, as granted that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint for their failure to comply with court-ordered discovery.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint for the plaintiffs' failure to comply with court-ordered discovery. The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Dokaj v. Ruxton Tower Ltd. Partnership, 91 A.D.3d 812, 814, 938 N.Y.S.2d 101 ; Quinones v. Long Is. Jewish Med. Ctr., 90 A.D.3d 632, 632, 933 N.Y.S.2d 907 ; Novick v. DeRosa, 51 A.D.3d 885, 885, 858 N.Y.S.2d 371 ). A court may strike a pleading as a sanction if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[3] ; see Tos v. Jackson Hgts. Care Ctr., LLC, 91 A.D.3d 943, 943–944, 937 N.Y.S.2d 629 ; Moray v. City of Yonkers, 76 A.D.3d 618, 619, 906 N.Y.S.2d 508 ; Mazza v. Seneca, 72 A.D.3d 754, 754, 899 N.Y.S.2d 294 ). 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 (see Matone v. Sycamore Realty Corp., 87 A.D.3d 1113, 1114, 930 N.Y.S.2d 460 ; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196 ; Prappas v. Papadatos, 38 A.D.3d 871, 872, 833 N.Y.S.2d 156 ). Here, the defendants demonstrated that the plaintiffs failed to comply with court-ordered discovery over an extended period of time. Moreover, the willful and contumacious character of the plaintiffs' conduct also may reasonably be inferred from their failure to meaningfully and substantially comply with a discovery order dated January 8, 2014, and the absence of a reasonable excuse for the failure to adequately comply (see Mikhailov v. Katan, 116 A.D.3d 744, 745, 983 N.Y.S.2d 614 ; Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 A.D.3d 1019, 1020, 973 N.Y.S.2d 791 ; H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., 107 A.D.3d 850, 851, 968 N.Y.S.2d 122.
The plaintiffs' remaining contentions are not properly before this Court.