Ali v. Lazerovitch

Appellate Division of the Supreme Court of New York

Ali v. Lazerovitch

281 A.D.2d 502, 721 N.Y.S.2d 797, 2001 N.Y. App. Div. LEXIS 2613

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2001

StatusPublished

Cited by1 cases

This text of 281 A.D.2d 502 (Ali v. Lazerovitch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ali v. Lazerovitch, 281 A.D.2d 502, 721 N.Y.S.2d 797, 2001 N.Y. App. Div. LEXIS 2613 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action to recover damages for personal injuries, the defendant Scharfs Grocery appeals from an order of the Supreme Court, Kings County (Jones, J.), dated May 3, 2000, which only conditionally granted that branch of its motion which was pursuant to CPLR 3126 to dismiss the complaint for failure to disclose, and, in effect, denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted without condition, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

The Supreme Court improvidently exercised its discretion in only conditionally granting that branch of the appellant’s motion which was pursuant to CPLR 3126 to dismiss the complaint for failure to disclose. The nature and degree of the [503]*503penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court. Dismissal of a complaint is appropriate where there is a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith. Such willful and contumacious conduct can be inferred from the plaintiffs repeated failures to comply with orders directing his examination before trial, and the inadequate reasons offered to excuse the failure to comply (see, Espinal v City of New York, 264 AD2d 806; Herrera v City of New York, 238 AD2d 475; Porreco v Selway, 225 AD2d 752; Baumann v Dee, 100 AD2d 504). Moreover, in opposition to the appellant’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see, Scotti v W.M. Amusements, 226 AD2d 522). Ritter, J. P., Krausman, Florio and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant Scharfs Grocery appeals from an order of the Supreme Court, Kings County (Jones, J.), dated May 3, 2000, which only conditionally granted that branch of its motion which was pursuant to CPLR 3126 to dismiss the complaint for failure to disclose, and, in effect, denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted without condition, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

The Supreme Court improvidently exercised its discretion in only conditionally granting that branch of the appellant’s motion which was pursuant to CPLR 3126 to dismiss the complaint for failure to disclose. The nature and degree of the [503]*503penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court. Dismissal of a complaint is appropriate where there is a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith. Such willful and contumacious conduct can be inferred from the plaintiffs repeated failures to comply with orders directing his examination before trial, and the inadequate reasons offered to excuse the failure to comply (see, Espinal v City of New York, 264 AD2d 806; Herrera v City of New York, 238 AD2d 475; Porreco v Selway, 225 AD2d 752; Baumann v Dee, 100 AD2d 504). Moreover, in opposition to the appellant’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see, Scotti v W.M. Amusements, 226 AD2d 522). Ritter, J. P., Krausman, Florio and Feuerstein, JJ., concur.

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Bluebook (online)

281 A.D.2d 502, 721 N.Y.S.2d 797, 2001 N.Y. App. Div. LEXIS 2613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ali-v-lazerovitch-nyappdiv-2001.

Opinion

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