Opinion
2002-00987
Submitted November 13, 2002.
December 9, 2002.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated December 7, 2001, as granted that branch of the plaintiff's motion pursuant to CPLR 3126 which was to preclude the defendants from offering any evidence at trial on the issue of notice of the purported violent propensities of an alleged assailant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Elizabeth S. Matrella and Fay Ng of counsel), for appellants.
Kahn Gordon Timko Rodriques, P.C., New York, N.Y. (Thomas B. Grunfeld of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see CPLR 3126; Kelleher v. Mt. Kisco Med. Group, 264 A.D.2d 760; Maillard v. Maillard, 243 A.D.2d 448). In this case, the willful and contumacious character of the defendants' failure to respond to discovery can be inferred from their continuing noncompliance with a court-ordered stipulation to produce relevant records, repeated adjournments of the production date, and inadequate excuses for the failure to produce the records (see Brandes v. Pirnie-Baker, 288 A.D.2d 413, 414; Kelleher v. Mt. Kisco Med. Group, supra at 761; Frias v. Fortini, 240 A.D.2d 467). Accordingly, the Supreme Court's determination to preclude the defendants from offering the relevant evidence at trial was proper.
SANTUCCI, J.P., SMITH, GOLDSTEIN, H. MILLER and MASTRO, JJ., concur.