Opinion
2014-07-30
Serrita STONE, respondent, v. Elena ZINOUKHOVA, et al., defendants, Sanitation Salvage Corp., et al., appellants.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for appellants. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone of counsel; Yelena Ambartsumian on the brief), for respondent.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for appellants. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone of counsel; Yelena Ambartsumian on the brief), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendants Sanitation Salvage Corp. and Roger Powell appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated May 6, 2013, as, in effect, granted those branches of the plaintiff's motion which were to strike the answer insofar as asserted by the defendant Roger Powell and for an inquest against him for failure to comply with discovery.
ORDERED that the appeal by the defendant Sanitation Salvage Corp. is dismissed, as that defendant is not aggrieved by the order appealed from ( seeCPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as appealed from by the defendant Roger Powell; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Roger Powell.
“[A] trial court is given broad discretion to oversee the discovery process” ( Castillo v. Henry Schein, Inc., 259 A.D.2d 651, 652, 686 N.Y.S.2d 818). 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 the “pleadings or parts thereof” (CPLR 3126 [3] ) as a sanction against such party ( see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55;Edwards v. Prescott Cab Corp., 110 A.D.3d 671, 972 N.Y.S.2d 629;Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 914 N.Y.S.2d 196). However, public policy favors the resolution of cases on the merits ( see Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d 727, 728, 843 N.Y.S.2d 178;1523 Real Estate, Inc. v. East Atl. Props., LLC, 41 A.D.3d 567, 568, 839 N.Y.S.2d 111;A.F.C. Enters., Inc. v. New York City School Constr. Auth., 33 A.D.3d 737, 822 N.Y.S.2d 775). Accordingly, “the ‘drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” ( Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686, 920 N.Y.S.2d 394, quoting Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196;see Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612;Morgenstern v. Jeffsam Corp., 78 A.D.3d 913, 914, 912 N.Y.S.2d 231;Giano v. Ioannou, 78 A.D.3d 768, 770, 911 N.Y.S.2d 398). “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” ( Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d at 686–687, 920 N.Y.S.2d 394 [internal quotation marks and citations omitted]; see Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 938 N.Y.S.2d 131;Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612;Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196;Morgenstern v. Jeffsam Corp., 78 A.D.3d at 914, 912 N.Y.S.2d 231).
Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous “so-ordered” extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel's investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him ( see Edwards v. Prescott Cab. Corp., 110 A.D.3d at 672, 972 N.Y.S.2d 629;Mason v. MTA N.Y. City Tr., 38 A.D.3d 258, 832 N.Y.S.2d 153;Montgomery v. City of New York, 296 A.D.2d 386, 386–387, 745 N.Y.S.2d 464).
The defendant's remaining contentions do not warrant a different result herein.