Baumann v. Dee

100 A.D.2d 504, 472 N.Y.S.2d 707, 1984 N.Y. App. Div. LEXIS 17472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1984
• Status: Published

Opinion

In a medical malpractice action, the defendant appeals from an order of the Supreme Court, Suffolk County (Orgera, J.), dated April 7, 1983, which denied his motion to dismiss the complaint. 11 Order reversed, on the law, with costs, motion granted and complaint dismissed. H While the dismissal of a complaint under CPLR 3126 is a harsh remedy for failure to comply with a court order for discovery, it is nonetheless called for under the circumstances of this case. Plaintiff’s failure to comply with the original order to disclose and the two subsequent conditional orders must be characterized as willful or contumacious (cf. Citizens Sav. & Loan Assn. v New York Prop. Ins. Underwriting Assn., 92 AD2d 907). Plaintiff’s conduct indicates an utter disregard of any reasonable standards of diligence and at no point was there any showing that his claim was meritorious. Accordingly, defendant is entitled to a dismissal of the complaint. Bracken, J. P., Brown, Niehoff and Boyers, JJ., concur.