Dacey v. Horror Cafe, Inc.

Appellate Division of the Supreme Court of New York

Dacey v. Horror Cafe, Inc.

293 A.D.2d 511, 739 N.Y.S.2d 828, 2002 N.Y. App. Div. LEXIS 3496

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

DecidedApril 8, 2002

StatusPublished

Cited by4 cases

This text of 293 A.D.2d 511 (Dacey v. Horror Cafe, Inc.) 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

Dacey v. Horror Cafe, Inc., 293 A.D.2d 511, 739 N.Y.S.2d 828, 2002 N.Y. App. Div. LEXIS 3496 (N.Y. Ct. App. 2002).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 6, 2000, which denied their motion to vacate an order of the same court, dated May 11, 2000, sua sponte dismissing the action for failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” is a matter within the discretion of the Supreme Court (CPLR 3126; see Zletz v Wetanson, 67 NY2d 711; DeJulio v Wulf, 260 AD2d 425; Kubacka v Town of N. Hempstead, 240 AD2d 374). The willful and contumacious conduct of the plaintiff Michael Dacey may be inferred from his repeated failure to comply with the court-ordered discovery schedule, and his failure to appear at scheduled independent medical examinations without adequate excuse (see Nowak v Veira, 289 AD2d 383; Polanco v Duran, 278 AD2d 397, 398; Frias v Fortini, 240 AD2d 467). Accordingly, the Supreme Court providently exercised its discretion in dismissing the complaint, and in denying the plaintiffs’ motion to vacate the prior order (see CPLR 2221). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 6, 2000, which denied their motion to vacate an order of the same court, dated May 11, 2000, sua sponte dismissing the action for failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” is a matter within the discretion of the Supreme Court (CPLR 3126; see Zletz v Wetanson, 67 NY2d 711; DeJulio v Wulf, 260 AD2d 425; Kubacka v Town of N. Hempstead, 240 AD2d 374). The willful and contumacious conduct of the plaintiff Michael Dacey may be inferred from his repeated failure to comply with the court-ordered discovery schedule, and his failure to appear at scheduled independent medical examinations without adequate excuse (see Nowak v Veira, 289 AD2d 383; Polanco v Duran, 278 AD2d 397, 398; Frias v Fortini, 240 AD2d 467). Accordingly, the Supreme Court providently exercised its discretion in dismissing the complaint, and in denying the plaintiffs’ motion to vacate the prior order (see CPLR 2221). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.

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Bluebook (online)

293 A.D.2d 511, 739 N.Y.S.2d 828, 2002 N.Y. App. Div. LEXIS 3496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dacey-v-horror-cafe-inc-nyappdiv-2002.

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