D.A.D. Restaurant Ltd. v. North River Insurance

Appellate Division of the Supreme Court of New York

D.A.D. Restaurant Ltd. v. North River Insurance

204 A.D.2d 510, 612 N.Y.S.2d 73

Appellate Division of the Supreme Court of the State of New York·Decided May 16, 1994·Published·Cited by 2 cases

Opinion

—In an action to recover under the terms of a fire insurance policy, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Christ, J.), entered March 20, 1992, which, upon an order of the same court entered February 27, 1992, granting the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3216 for failure to comply with discovery, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

It is well settled that the nature and degree of the penalty to be imposed for the willful failure to obey an order of disclosure is a matter lying within the sound discretion of the court (see, Berman v Szpilzinger, 180 AD2d 612; Miller v [511] Duffy, 126 AD2d 527). Despite having been given numerous opportunities to comply with the court’s discovery orders, the plaintiff failed to do so, offering vague excuses such as that the information requested "ha[d] yet to be received”, "due to the complicated and convoluted problems associated with the incident”. We find these excuses to be unsatisfactory, and conclude that dismissal of the complaint pursuant to CPLR 3126 (3) was entirely proper and not an improvident exercise of discretion (see, Adams v Brookdale Hosp. Med. Ctr., 188 AD2d 630; Kirkland v Community Hosp., 187 AD2d 566; Bender & Bodnar v Nankin, 186 AD2d 524; Kogan v Royal Indem. Co., 179 AD2d 399). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.

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—In an action to recover under the terms of a fire insurance policy, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Christ, J.), entered March 20, 1992, which, upon an order of the same court entered February 27, 1992, granting the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3216 for failure to comply with discovery, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

It is well settled that the nature and degree of the penalty to be imposed for the willful failure to obey an order of disclosure is a matter lying within the sound discretion of the court (see, Berman v Szpilzinger, 180 AD2d 612; Miller v [511] Duffy, 126 AD2d 527). Despite having been given numerous opportunities to comply with the court’s discovery orders, the plaintiff failed to do so, offering vague excuses such as that the information requested "ha[d] yet to be received”, "due to the complicated and convoluted problems associated with the incident”. We find these excuses to be unsatisfactory, and conclude that dismissal of the complaint pursuant to CPLR 3126 (3) was entirely proper and not an improvident exercise of discretion (see, Adams v Brookdale Hosp. Med. Ctr., 188 AD2d 630; Kirkland v Community Hosp., 187 AD2d 566; Bender & Bodnar v Nankin, 186 AD2d 524; Kogan v Royal Indem. Co., 179 AD2d 399). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.

D.A.D. Restaurant Ltd. v. North River Insurance, 204 A.D.2d 510, 612 N.Y.S.2d 73 (N.Y. Ct. App. 1994).

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204 A.D.2d 510 (D.A.D. Restaurant Ltd. v. North River Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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