Opinion
2020–00753 Index No. 511539/16
07-27-2022
Nauaman SHEIKH, appellant, v. Peter J. POPLARDO, respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum and Jackie Gross ], of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum and Jackie Gross ], of counsel), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Ellen Spodek, J.), dated December 20, 2018. The judgment, upon an order of the same court dated June 28, 2018, granting the defendant's motion, inter alia, pursuant to CPLR 3126(3) to strike the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
" ‘Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ " ( Vays v. Luntz, 179 A.D.3d 744, 746, 113 N.Y.S.3d 556, quoting Morales v. Zherka, 140 A.D.3d 836, 836–837, 35 N.Y.S.3d 121 ). " ‘When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading’ " ( Ewa v. City of New York, 186 A.D.3d 1195, 1196, 127 N.Y.S.3d 911, quoting Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d 819, 820, 101 N.Y.S.3d 70 ; see Park Side Constr. Contrs., Inc. v. Bryan's Quality Plus, LLC, 156 A.D.3d 804, 806–807, 68 N.Y.S.3d 90 ). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3] ; Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911 ; Ahmed v. Ahmed, 175 A.D.3d 1363, 1364, 109 N.Y.S.3d 200 ). " ‘Willful and contumacious conduct may 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’ " ( Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911, quoting Honghui Kuang v. MetLife, 159 A.D.3d 878, 881, 74 N.Y.S.3d 88 [internal quotation marks omitted]; see Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d at 820, 101 N.Y.S.3d 70 ; Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394 ).
Here, the plaintiff's repeated failure to appear for a deposition, in violation of multiple Supreme Court orders, coupled with his failure to demonstrate a reasonable excuse for that failure, supports an inference that his conduct was willful and contumacious (see Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d 976, 977, 986 N.Y.S.2d 589 ; Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 924, 938 N.Y.S.2d 131 ). Under these circumstances, it was a provident exercise of the court's discretion to grant the defendant's motion, inter alia, pursuant to CPLR 3126(3) to strike the complaint.
LASALLE, P.J., CONNOLLY, GENOVESI and FORD, JJ., concur.