Opinion
603219/17
07-01-2019
Jennifer REILLY, Plaintiff, v. Brenden ROGERS and Dawn Rogers, Defendants.
Clarke & Fellows, Esqs., 140 Gazza Blvd., Farmingdale, NY 11735, For Plaintiff Deirdre J. Tobin & Associates, P O Box 9330, 901 Franklin Avenue, Garden City, NY 11530, For Defendants
Clarke & Fellows, Esqs., 140 Gazza Blvd., Farmingdale, NY 11735, For Plaintiff
Deirdre J. Tobin & Associates, P O Box 9330, 901 Franklin Avenue, Garden City, NY 11530, For Defendants
Carmen Victoria St. George, J.
The following numbered papers were read upon this motion:
Notice of Motion/Order to Show Cause 9-31
Answering Papers
Reply
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Defendants move this Court unopposed for an Order dismissing the complaint based upon plaintiff's willful failure to respond to the defendants' discovery demands, including for a Bill of Particulars. In the alternative, defendants seek to preclude plaintiff from offering any evidence in support of the particulars demanded by the moving defendants and/or in support of any claims of liability or damages in this action.
While this Court recognizes the preference for matters to be decided on their merits, when, as is the case herein, there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith, a dismissal is appropriate. ( Howe v. Jeremiah ,51 AD3d 975 [2d Dept 2008] ; Devito v. J & J Towing, Inc. , 17 AD3d 624 [2d Dept 2005] ). Furthermore, willful and contumacious conduct can be inferred from a party's repeated failures to respond to discovery demands and the court's orders to comply with such demands ( Howe , supra ; Devito , supra ; Pirro Group, LLC v. One Point Street, Inc. , 71 AD3d 654 [2d Dept 2010] ; Dank v. Sears Holding Management Corp. , 69 AD3d 557 [2d Dept 2010] ; Maiorino v. City of New York , 39 AD3d 601 [2d Dept 2007] ; Devito v. J & J Towing, Inc. , 17 AD3d 624 [2d Dept 2005] ).
Defendants' submissions upon the instant motion establish that plaintiff has not only failed to provide a Bill of Particulars and other discovery as demanded in writing by defendants on six occasions, but that plaintiff has also violated the Court's Preliminary Conference Stipulation and Order (PC Order) issued November 30, 2017 and a Court Order dated January 8, 2019 (Molia, J.). The PC Order required, among other things, that plaintiff serve a Bill of Particulars on or before December 6, 2017 and provide medical records authorizations by that same date. Judge Molia's January 8, 2019 Order directed that the complaint be dismissed, or in the alternative that the plaintiff be precluded from offering evidence in support of her claims unless within twenty (20) days of receipt of that Order with notice of entry plaintiff supplied a verified Bill of Particulars and full and complete responses to defendants' Notice for Discovery and Inspection and Combined Demands dated March 15, 2017. The affidavit of service accompanying Judge Molia's Order with notice of entry establishes that it was served upon plaintiff's counsel on January 14, 2019 by mail.
A letter from defendants' counsel to plaintiff's counsel dated August 14, 2018 refers to a court conference during which plaintiff's counsel "appeared and agreed to discontinue this matter without prejudice since your client cannot be found at this time." The letter enclosed a stipulation of discontinuance, but it was never executed by plaintiff's counsel.
According to the affirmation of defendants' counsel submitted in support of the instant motion, plaintiff has not provided any discovery or a Bill of Particulars to date. As noted, plaintiff has not interposed any opposition to the relief requested by defendants in this motion; therefore, plaintiff has failed to offer a reasonable excuse for her failure to comply (see Birch Hill Farm, Inc. v. Reed , 272 AD2d 282 [2d Dept 2000] ).
The Court finds plaintiff's failure to respond to defendants' written demands and to this Court's two prior Orders is willful, contumacious and in bad faith, warranting dismissal of the complaint pursuant to CPLR §§ 3042 (d) and 3126 (3).
Accordingly, defendants' motion is granted, and this action is dismissed ( Field v. Bao , 140 AD3d 921 [2d Dept 2016] ).
The foregoing constitutes the Decision and Order of this Court.