Opinion
06-14-2017
Sandra MEW, appellant, v. Francis D. CIVITANO, et al., respondents.
Michael A. Cervini, Elmhurst, NY, for appellant. Burns & Nallan, Melville, NY (Robert I. Meyers of counsel), for respondents.
Michael A. Cervini, Elmhurst, NY, for appellant.
Burns & Nallan, Melville, NY (Robert I. Meyers of counsel), for respondents.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), entered March 23, 2016, as denied that branch of her motion which was pursuant to CPLR 3126 to strike the defendants' answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court has broad discretion to oversee the discovery process (see Henry v. Datson, 140 A.D.3d 1120, 1122, 35 N.Y.S.3d 383 ; Maiorino v. City of New York, 39 A.D.3d 601, 834 N.Y.S.2d 272 ). The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the court (see Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 938 N.Y.S.2d 131 ; Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ). As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy that is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious (see Singer v. Riskin, 137 A.D.3d 999, 1001, 27 N.Y.S.3d 209 ; Stone v. Zinoukhova, 119 A.D.3d 928, 929, 990 N.Y.S.2d 567 ; A.F.C. Enters., Inc. v. New York City School Constr. Auth., 33 A.D.3d 737, 822 N.Y.S.2d 775 ). Willful and contumacious conduct can be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time (see Gutman v. Cabrera, 121 A.D.3d 1042, 1043, 995 N.Y.S.2d 180 ; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74 ; Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d at 923, 938 N.Y.S.2d 131 ; Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394 ).
Here, in support of that branch of her motion which was pursuant to CPLR 3126 to strike the defendants' answer, the plaintiff merely demonstrated that the parties entered into several so-ordered stipulations extending a stay of the action pending the completion of outstanding discovery and extending the time for the parties to conduct depositions. The defendants demonstrated that they already had complied with the so-ordered stipulations when the plaintiff made her motion (see Palmieri v. Piano Exch., Inc., 124 A.D.3d 611, 612, 1 N.Y.S.3d 315 ; Delarosa v. Besser Co., 86 A.D.3d 588, 589, 926 N.Y.S.2d 910 ; Lomax v. Rochdale Vil., Inc., 76 A.D.3d 999, 907 N.Y.S.2d 690 ). Furthermore, the record does not support an inference that the defendants' conduct was willful and contumacious (see Henry v. Datson, 140 A.D.3d at 1122, 35 N.Y.S.3d 383 ; De Leo v. State–Whitehall Co., 126 A.D.3d 750, 752, 5 N.Y.S.3d 277 ; JPMorgan Chase Bank, N.A. v. New York State Dept. of Motor Vehs., 119 A.D.3d 903, 990 N.Y.S.2d 577 ). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the defendants' answer.