Opinion
CA 02-01025
November 15, 2002.
Appeals from an order of Supreme Court, Monroe County (Alonzo, J.), entered July 18, 2001, which dismissed the complaints pursuant to CPLR 3126(3).
LAW OFFICE OF THOMAS F. O'BRIEN, CLINTON (ANDREW V. LALONDE OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
GOLDBERG SEGALLA, LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Contrary to plaintiffs' contention, Supreme Court providently exercised its discretion in granting the motion of defendant pursuant to CPLR 3126(3) to dismiss the complaints against him for plaintiffs' failure to comply with the court's discovery orders ( see Cavaliere v. Episcopal Health Servs., 287 A.D.2d 532, 533; Wilson v. West Hempstead Gens. Football Club, 286 A.D.2d 438; Kingsley v. Kantor, 265 A.D.2d 529, 530). "[W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the [court]'s discretion to dismiss the complaint" ( Kihl v. Pfeffer, 94 N.Y.2d 118, 122; see Zletz v. Wetanson, 67 N.Y.2d 711, 713; Paull v. First UNUM Life Ins. Co., 267 A.D.2d 970, 971). That the conduct of plaintiffs was willful and contumacious could be inferred from their failure to comply fully with the discovery orders or offer a reasonable excuse therefor ( see Wilson, 286 A.D.2d 438; Kingsley, 265 A.D.2d at 530; Garcia v. Kraniotakis, 232 A.D.2d 369, 370).