Opinion
2007-873 Q C.
Decided October 27, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 19, 2007. The order denied a motion by defendant Sterling Mets, L.P. to dismiss the complaint.
Order reversed without costs and motion by defendant Sterling Mets, L.P. to dismiss the complaint granted.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Plaintiff originally commenced this action in Supreme Court to recover damages for personal injuries she allegedly sustained after tripping and falling on a sidewalk at Shea Stadium. In February 2005, defendant Sterling Mets, L.P. (appellant) served an answer along with demands for a bill of particulars and discovery. Plaintiff failed to respond to those demands, and, at a preliminary conference, plaintiff was directed to serve a bill of particulars and complete all outstanding discovery by June 17, 2005. Plaintiff failed to comply, and appellant made a written request for the outstanding discovery on July 11, 2005. Having received no response to this request, appellant moved for an order dismissing the complaint or, alternatively, precluding plaintiff from offering evidence at trial or compelling plaintiff to provide the outstanding discovery.
On October 5, 2005, appellant withdrew that motion, pursuant to a so-ordered stipulation in which plaintiff agreed to provide outstanding discovery within 30 days. When plaintiff failed to comply with this term of the stipulation, appellant sent plaintiff another letter requesting that she do so. At a compliance conference held on January 11, 2006, Supreme Court directed plaintiff to provide the discovery listed in the stipulation and transferred the case to Civil Court pursuant to CPLR 325 (d). Again, plaintiff failed to comply, and, on April 10, 2006, appellant sent plaintiff yet another letter requesting that she provide the outstanding discovery. Once again, plaintiff failed to respond, prompting appellant to file a second motion.
This time, the motion was resolved by a second so-ordered stipulation, which directed plaintiff, among other things, to provide the listed discovery "[within] 30 days or be precluded from introduction of evidence concerning same at trial." Inexplicably, plaintiff failed to comply with this directive in a timely and complete fashion, prompting appellant to file a third motion to dismiss the complaint. The instant appeal is from the order denying that motion.
While we recognize that the drastic remedy of dismissal is reserved for those cases where the conduct of the resisting party is demonstrated to be willful and contumacious ( Novick v DeRosa, 51 AD3d 885), we nevertheless conclude that, under the circumstances of this case, dismissal is the only appropriate sanction. Not only did plaintiff disregard appellant's good faith attempts to obtain outstanding discovery, but she repeatedly ignored court orders directing her to provide the discovery. Indeed, plaintiff offered no explanation for her failure to obey four court orders and respond to numerous written defense inquiries over nearly a two-year period. This persistent failure can only be characterized as willful and contumacious ( see id.; Maiorino v City of New York, 39 AD3d 601, 602; Lanc v Donnelly, 13 AD3d 593). The fact that plaintiff ultimately served an incomplete response 31 days after the date of the fourth court order is, in our opinion, too little, too late.
Accordingly, the order of the court below is reversed and the motion by appellant to dismiss the complaint is granted.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.