Summary
In Bodine v. Ladjevardi, the plaintiff acted willfully and contumaciously when it adjourned scheduled depositions, failed to produce requested documents, and failed to comply with the court's order directing compliance with discovery without an adequate excuse, 284 A.D.2d at 352.
Summary of this case from G.Willi-Food Int'l Ltd. v. Herzfeld & Rubin, P.C.Opinion
Argued May 14, 2001
June 11, 2001
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered March 7, 2000, which granted the separate motions of the defendant Shahriar Ahy and the defendants Hamid Ladjevardi, Baltic Fund 1, L.P., Baltic Fund 1, LLC, and Baltic Management, LLC, pursuant to CPLR 3126 to dismiss the amended verified complaint insofar as asserted against them based on the plaintiff's failure to comply with court-ordered discovery.
Eric W. Berry, New York, N.Y., for appellant.
Collier, Halpern, Newberg, Nolletti Bock, LLP, White Plains, N Y (Philip M. Halpern and Harry J. Nicolay, Jr., of counsel), and Jean-Pierre van Lent, New York, N.Y., for respondents (one brief filed).
Before: DAVID S. RITTER, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
The trial court properly dismissed the amended verified complaint insofar as asserted against the respondents. It is within the discretion of the trial court to determine the nature and degree of the penalty to be imposed against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see, DeJulio v. Wulf, 260 A.D.2d 425; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374; Soto v. City of Long Beach, 197 A.D.2d 615). The plaintiff's willful and contumacious conduct can be inferred from his numerous adjournments of scheduled depositions, failure to produce requested documents, and failure to comply with the trial court's orders directing discovery compliance without an adequate excuse (see, Castrignano v. Flynn, 255 A.D.2d 352; Brady v. County of Nassau, 234 A.D.2d 408; Garcia v. Kraniotakis, 232 A.D.2d 369).
The plaintiff's remaining contentions are either not properly before this court or without merit.