Daniels v. City of New York

78 A.D.3d 883, 910 N.Y.S.2d 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2010
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Keyspan Energy Corporation appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 13, 2009, which granted that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike its answer for failure to comply with discovery demands.

Ordered that the order is affirmed, with costs.

“The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the motion court” (Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655 [2010]; see Novick v DeRosa, 51 AD3d 885 [2008]). “The drastic remedy of striking a pleading pursuant to CPLR 3126 (3) for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious” (Pirro Group, LLC v One Point St, Inc., 71 AD3d at 655; see Novick v DeRosa, 51 AD3d 885 [2008]).

Here, the appellant’s willful and contumacious conduct can be inferred from its repeated failure to comply with the plaintiff’s request for documents and the Supreme Court’s orders seeking to enforce that request. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs motion which was to strike the appellant’s answer (see Pirro Group, LLC v One Point St., Inc., 71 AD3d 654 [2010]; Byam v City of New York, 68 AD3d 798 [2009]; Schwartz v Suebsanguan, 15 AD3d 565 [2005]). Prudenti, P.J., Covello, Florio and Belen, JJ., concur.