Opinion
2021–04192 Index No. 618775/18
08-16-2023
Luis Humberto ZAVALA, etc., respondent, v. RENNEW HOLDING CORP., defendant third-party plaintiff, et al., defendants; LG C & D Services, Inc., third-party defendant-appellant.
Martyn, Martyn, Smith & Murray, Hauppauge, NY (Kevin Locke of counsel), for third-party defendant-appellant. Tantleff & Kreinces, LLP, Mineola, NY (Edward D. Tantleff of counsel), for respondent.
Martyn, Martyn, Smith & Murray, Hauppauge, NY (Kevin Locke of counsel), for third-party defendant-appellant.
Tantleff & Kreinces, LLP, Mineola, NY (Edward D. Tantleff of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated May 4, 2021. The order denied the third-party defendant's motion, in effect, pursuant to CPLR 3126 to preclude any party from offering certain audio recordings as evidence at trial.
ORDERED that the order is affirmed, with costs.
In August 2018, the plaintiff allegedly was injured while working on a construction project at premises owned by the defendant Rennew Holding Corp. (hereinafter the owner). In September 2018, the plaintiff commenced this action to recover damages for personal injuries against, among others, the owner, alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). In August 2019, the owner commenced a third-party action against LG C & D Services, Inc. (hereinafter LG), the plaintiff's employer, seeking, inter alia, indemnification and contribution.
After the sole owner of LG, John M. Krawchick, was deposed, the plaintiff disclosed two audio recordings he had made of certain conversations he previously had with Krawchick. LG then moved, in effect, pursuant to CPLR 3126 to preclude any party from offering the two audio recordings as evidence at trial. LG asserted that the plaintiff, in failing to disclose these audio recordings until after Krawchick was deposed, violated CPLR 3101(i). By order dated May 4, 2021, the Supreme Court denied LG's motion. LG appeals.
CPLR 3101(i) "requires disclosure of ‘any films, photographs, video tapes or audio tapes’ of a party, regardless of who created the recording or for what purpose" ( Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116, 146, 21 N.Y.S.3d 78, quoting CPLR 3101[i] ; see Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 387–389, 756 N.Y.S.2d 509, 786 N.E.2d 444 ; Pizzo v. Lustig, 216 A.D.3d 38, 46, 189 N.Y.S.3d 579 ). "Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed’ " ( Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813, 815, 144 N.Y.S.3d 81, quoting CPLR 3126 [internal quotation marks omitted]). "The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court" ( Nationstar Mtge., LLC v. Jackson, 192 A.D.3d at 815, 144 N.Y.S.3d 81 ; see Smookler v. Dicerbo, 166 A.D.3d 838, 839, 88 N.Y.S.3d 235 ). However, before a court invokes the remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery was willful and contumacious (see Pizzo v. Lustig, 216 A.D.3d at 44–45, 189 N.Y.S.3d 579 ; Household Fin. Realty Corp. of N.Y. v. Cioppa, 153 A.D.3d 908, 910, 61 N.Y.S.3d 259 ; Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737, 739, 945 N.Y.S.2d 756 ).
Here, the record does not demonstrate that the plaintiff's failure to previously disclose the audio recordings was willful and contumacious but, rather, that the delay was caused by the plaintiff's injuries, which impacted his memory, together with the fact that LG was added as a party about one year after the recordings were made. Accordingly, the Supreme Court providently exercised its discretion in denying LG's motion to preclude (see Gelin v. New York City Tr. Auth., 189 A.D.3d 789, 793, 137 N.Y.S.3d 452 ; Household Fin. Realty Corp. of N.Y. v. Cioppa, 153 A.D.3d 908, 910, 61 N.Y.S.3d 259 ).
IANNACCI, J.P., CHAMBERS, FORD and WAN, JJ., concur.