Opinion
No. 2021-04941 Index No. 150065/18
12-20-2023
Patricia Lifrieri, appellant, v. Michael Gambale, respondent, et al., defendant.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale, NY (Lauren M. Mazzara and Anne P. O'Brien of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale, NY (Lauren M. Mazzara and Anne P. O'Brien of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated June 15, 2021. The order denied the plaintiff's motion pursuant to CPLR 3126 to strike the answer of the defendant Michael Gambale for failure to comply with discovery demands and spoliation of evidence or, in the alternative, to impose other sanctions against that defendant for spoliation of evidence.
ORDERED that the order is affirmed, with costs.
In January 2018, the plaintiff commenced this action against the defendant Michael Gambale (hereinafter the defendant), the owner of the building in which the plaintiff resided, and one other defendant to recover damages for personal injuries she alleged she sustained in June 2017 when a window in her apartment that she was attempting to open swung open toward her, causing her to fall. In April 2021, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the answer of the defendant, contending that the defendant failed to comply with discovery demands and spoliated evidence. In an order dated June 15, 2021, the Supreme Court denied the motion. The plaintiff appeals. We affirm.
The determination of whether to strike an answer pursuant to CPLR 3126 is addressed to the sound discretion of the trial court (see Pinto v Tenenbaum, 105 A.D.3d 930, 931). The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or bad faith conduct (see id. at 931; Laskin v Friedman, 90 A.D.3d 617, 617-618). Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer for failure to comply with discovery demands. The plaintiff did not demonstrate that the defendant's failure to produce a 2014 home inspection report (hereinafter the 2014 report) was the product of willful, contumacious, or bad faith conduct.
The Supreme Court also providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the defendant's answer on the ground that the defendant spoliated the 2014 report. The defendant's failure to produce the 2014 report did not leave the plaintiff unable to prove her claim (see Hirschberg v Winthrop-University Hosp., 175 A.D.3d 556, 557). Further, the court providently exercised its discretion in determining that the issue of whether an adverse inference charge is warranted should be determined at trial (see S.W. v Catskill Regional Med. Ctr., 211 A.D.3d 890, 892).
DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.