Opinion
970 CA 21-00514
11-19-2021
Susan SQUIRES, Plaintiff-Respondent, v. Jennifer SAY, Defendant-Appellant.
LAW OFFICES OF JOHN TROP, ROCHESTER (THOMAS P. DURKIN OF COUNSEL), FOR DEFENDANT-APPELLANT. FEROLETO LAW, BUFFALO (CARRIE A. ZIMBARDI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICES OF JOHN TROP, ROCHESTER (THOMAS P. DURKIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FEROLETO LAW, BUFFALO (CARRIE A. ZIMBARDI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action to recover damages for personal injuries allegedly sustained by plaintiff as the result of a motor vehicle collision, defendant appeals from an order that denied her motion to strike the complaint or, in the alternative, to preclude plaintiff from offering evidence at trial that her injuries are permanent, based on plaintiff's alleged failure to provide disclosure. "The nature and degree of a sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the court, and the striking of a pleading is appropriate only upon a clear showing that a party's failure to comply with a discovery demand or order is willful, contumacious, or in bad faith" ( Mosey v. County of Erie , 117 A.D.3d 1381, 1384, 984 N.Y.S.2d 706 [4th Dept. 2014] ; see Windnagle v. Tarnacki , 184 A.D.3d 1178, 1179, 126 N.Y.S.3d 282 [4th Dept. 2020] ). We agree with Supreme Court that plaintiff's conduct during discovery did not rise to the level of willful or bad faith behavior so as to warrant the sanctions sought. We therefore conclude that the court did not abuse its discretion in denying defendant's motion pursuant to CPLR 3126 (see Windnagle , 184 A.D.3d at 1179-1180, 126 N.Y.S.3d 282 ; Pinnock v. Mercy Med. Ctr. , 180 A.D.3d 1086, 1087, 119 N.Y.S.3d 566 [2d Dept. 2020] ; cf. Campbell v. Obear , 26 A.D.3d 877, 877, 809 N.Y.S.2d 371 [4th Dept. 2006] ).