Contrary to the contention of the Arena defendants in appeal No. 2, we conclude that the court properly denied their motion seeking to limit further disclosure or, alternatively, the appointment of a referee to supervise further disclosure ( see Kogan v. Royal Indem. Co., 179 A.D.2d 399, 399, 577 N.Y.S.2d 849). We note that the court was without authority to appoint as a referee the private attorney proposed by the Arena defendants absent plaintiff's consent ( see Ploski v. Riverwood Owners Corp., 255 A.D.2d 24, 28, 688 N.Y.S.2d 627).
Despite having been given numerous opportunities to comply with the court's discovery orders, the plaintiff failed to do so, offering vague excuses such as that the information requested "ha[d] yet to be received", "due to the complicated and convoluted problems associated with the incident". We find these excuses to be unsatisfactory, and conclude that dismissal of the complaint pursuant to CPLR 3126 (3) was entirely proper and not an improvident exercise of discretion (see, Adams v. Brookdale Hosp. Med. Ctr., 188 A.D.2d 630; Kirkland v. Community Hosp., 187 A.D.2d 566; Bender Bodnar v. Nankin, 186 A.D.2d 524; Kogan v. Royal Indem. Co., 179 A.D.2d 399). Thompson, J.P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.). Dismissal of the complaint is appropriate when a plaintiff repeatedly and willfully disobeys the court's successive discovery orders (Kogan v Royal Indem. Co., 179 A.D.2d 399). Since plaintiff herein repeatedly failed to appear at scheduled depositions, it was not an abuse of discretion for the court to dismiss the complaint. Concur — Rosenberger, J.P., Ellerin, Kupferman and Rubin, JJ.
"CPLR 3104 provides for the appointment of a referee to supervise all or part of disclosure proceedings upon motion or on the court's initiative. The decision to appoint a referee is a matter within the discretion of the trial court and is especially appropriate where, as here, a party appearing pro se is hostile or otherwise frustrates discovery" (Kogan v Royal Indem. Co., 179 A.D.2d 399, 399 [1st Dept 1992]). The Court finds no need for a special referee at this juncture.
The decision to appoint a referee is discretionary with the trial court and is appropriate where a party is hostile or otherwise frustrates discovery. (Kogan v RoyalIndem. Co., 179 A.D.2d 399 [1st Dept 1992]). "The supervisory power conferred by CPLR 3104 should be exercised sparingly and its exercise is not warranted in the absence of special circumstances."
. (Yoon v. Costello, 29 A.D.3d 407[1st Dept. 2006]; see also see Kogan v. Royal Indemnity Co., 179 A.D.2d 399 [1st Dept. 1992][ dismissal appropriate when a plaintiff repeatedly and willfully disobeys the court's successive discovery orders]). A court may strike a party's answer only when "a clear showing that the failure to comply is willful, contumacious or in bad faith" is made by the moving party.
While CPLR §3104 authorizes this Court to appoint a referee to oversee discovery, this "supervisory power" is meant to be used "sparingly" and not in "the absence of special circumstances" DiGiovanni v Pepsico, Inc., 120 AD2d 413, 414 [1st Dept 1986]). As this is the parties' first discovery dispute necessitating a formal, written decision of the Court and it does not otherwise appear the parties are acting hostilely or repeatedly frustrating discovery, a referee is not presently necessary (compare to Kogan v Royal Indemn. Co., 179 AD2d 399, 400 [1st Dept 1992]).
. This discretion includes the power, pursuant to CPLR §3104, to oversee the discovery process and direct that discovery, such as a deposition, be held in the courthouse (Kogan v Royal Indem. Co., 179 AD2d 399,[1st Dept 1992] [stating that the decision to appoint a referee pursuant to CPLR §3104 "is a matter within the discretion of the trial court and is especially appropriate where, as here, a party appearing pro se is hostile or otherwise frustrates discovery"]).
The defendants Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associates, P.C. and Healthbridge Medical Associates, P.C.'s motion for award of costs and attorneys fees is granted. (See, Kogan v. Royal Indem. Co., 179 A.D.2d 399, 577 N.Y.S.2d 849 (1st Dept., 1992); Figdor v. City of New York, 33 A.D.3d 560, 823 N.Y.S.2d 385 [1st Dept., 2006]). They are directed to serve and submit copies of legal bills redacted where warranted within ten (10) days of this court's orders.
The decision to appoint a referee is a matter within the discretion of the trial court and is especially appropriate where, as here, a party appearing pro se is hostile or otherwise frustrates discovery. Kogan v. Royal Indem. Co., 179 A.D.2d 399 (1st Dep't 1992) (citations omitted); C.P.L.R. § 3104. Given the circumstances of the prolonged discovery in this case, plaintiff's ongoing attempts to enlarge the scope of his dental malpractice case, and both sides' failure to comply with court-ordered discovery deadlines, it is appropriate for the court to appoint a special referee to oversee further depositions; such depositions shall be held at the courthouse.