Davidson v. Aetna Casualty & Surety Insurance

237 A.D.2d 321, 655 N.Y.S.2d 446, 1997 N.Y. App. Div. LEXIS 2347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1997
• Status: Published

Opinion

In an action to recover under an insurance policy, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), entered March 22, 1996, which granted the defendant’s motion to dismiss the complaint with prejudice.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for a party’s failure to disclose is a determination that lies within the sound discretion of the trial court (see, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892). In this case, the plaintiff engaged in a pattern of conduct over the years which evidenced an intent to willfully and contumaciously obstruct and delay the progress of disclosure. Accordingly, it was not an improvident exercise of discretion to grant the defendant’s motion to dismiss (see, Porreco v Selway, 225 AD2d 752; Corsini v U-Haul Intl., 212 AD2d 288; Vatel v City of New York, 208 AD2d 524; Mills v Ducille, 170 AD2d 657). O’Brien, J. P., Santucci, Friedmann and Krausman, JJ., concur.