Opinion
2011-11-22
Scott MacDONALD, appellant, v. Jack LEIF, respondent.
Brody, O'Connor & O'Connor, Northport, N.Y. (Theresa J. Viera and Scott A. Brody of counsel), for appellant. Gregory J. Sutton, Garden City, N.Y. (Lorraine M. Korth of counsel), for respondent.
Brody, O'Connor & O'Connor, Northport, N.Y. (Theresa J. Viera and Scott A. Brody of counsel), for appellant. Gregory J. Sutton, Garden City, N.Y. (Lorraine M. Korth of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Asarch, J.), entered January 5, 2011, which granted the defendant's motion pursuant to CPLR 3126 to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
“Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court. A determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion” ( Duncan v. Hebb, 47 A.D.3d 871, 871, 850 N.Y.S.2d 610 [internal quotation marks and citation omitted]; see Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 878 N.Y.S.2d 178). Although actions should be resolved on the merits whenever possible, where the conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted ( see Brown v. Astoria Fed. Sav., 51 A.D.3d 961, 962, 858 N.Y.S.2d 793; Martin v. City of New York, 46 A.D.3d 635, 847 N.Y.S.2d 621; Maiorino v. City of New York, 39 A.D.3d 601, 834 N.Y.S.2d 272). 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 ( see Matone v. Sycamore Realty Corp., 87 A.D.3d 1113, 930 N.Y.S.2d 460; Duncan v. Hebb, 47 A.D.3d at 871, 850 N.Y.S.2d 610; Maiorino v. City of New York, 39 A.D.3d at 602, 834 N.Y.S.2d 272).
Here, the plaintiff's willful and contumacious conduct can be inferred from his failure, over an extended period of time, to comply with the defendant's demands for discovery and the court's orders directing disclosure ( see Matone v. Sycamore Realty Corp., 87 A.D.3d 1113, 930 N.Y.S.2d 460), and the inadequate excuse offered to justify the failures ( see Maiorino v. City of New York, 39 A.D.3d at 602, 834 N.Y.S.2d 272; Matter of Denton v. City of Mount Vernon, 30 A.D.3d 600, 601, 817 N.Y.S.2d 140). Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3126 to dismiss the complaint.