Beizer v. Schwartzben

1 A.D.3d 301, 766 N.Y.S.2d 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2003
• Status: Published

Opinion

In an action for a judgment declaring that the plaintiff has acquired certain real property by adverse possession, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 4, 2002, as granted the defendants’ motion to impose a penalty upon her pursuant to CPLR 3126 for her failure to proceed with a videotaped deposition.

Ordered that the order is affirmed, with costs.

It is well settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failure to provide disclosure is a matter that rests within the sound discretion of the Supreme Court (see Lavi v Lavi, 256 AD2d 602 [1998]; Kubacka v Town of N. Hempstead, 240 AD2d 374 [1997]). Contrary to the plaintiff’s contentions, the record supports the Supreme Court’s determination that she willfully and contumaciously refused to proceed with a videotaped deposition, although proper notice had been served by the defendants, and counsel for both sides had agreed to the videotaping. Accordingly, the Supreme Court providently imposed the penalty (see Gamble v Anlynne, 199 AD2d 303 [1993]).

The plaintiffs remaining contentions are without merit. Altman, J.E, S. Miller, McGinity, Adams and Mastro, JJ., concur.