Lones v. Lampeas

Appellate Division of the Supreme Court of New York

Lones v. Lampeas

270 A.D.2d 317, 705 N.Y.S.2d 239, 2000 N.Y. App. Div. LEXIS 2697

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

DecidedMarch 13, 2000

StatusPublished

Cited by3 cases

This text of 270 A.D.2d 317 (Lones v. Lampeas) 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

Lones v. Lampeas, 270 A.D.2d 317, 705 N.Y.S.2d 239, 2000 N.Y. App. Div. LEXIS 2697 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (LaTorella, J.), dated November 16, 1998, as granted that branch of the plaintiffs motion which was to strike their answer and precluded them from offering any evidence at trial, and (2) from an order of the same court dated May 14, 1999, which denied their motion for reargument.

Ordered that the appeal from the order dated May 14, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated November 16, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion, the drastic remedy of preclusion, which results in the striking of a pleading, should be invoked only upon a clear showing that the noncomplying party’s failure to provide discovery was willful, [318]*318deliberate, and contumacious (see, Kihl v Pfeffer, 94 NY2d 118; Maillard v Maillard, 243 AD2d 448; Garcia v Kraniotakis, 232 AD2d 369; Vatel v City of New York, 208 AD2d 524). Here, given the conduct of the appellants, the Supreme Court providently exercised its discretion in striking their answer and precluding them from testifying at trial. Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (LaTorella, J.), dated November 16, 1998, as granted that branch of the plaintiffs motion which was to strike their answer and precluded them from offering any evidence at trial, and (2) from an order of the same court dated May 14, 1999, which denied their motion for reargument.

Ordered that the appeal from the order dated May 14, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated November 16, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion, the drastic remedy of preclusion, which results in the striking of a pleading, should be invoked only upon a clear showing that the noncomplying party’s failure to provide discovery was willful, [318]*318deliberate, and contumacious (see, Kihl v Pfeffer, 94 NY2d 118; Maillard v Maillard, 243 AD2d 448; Garcia v Kraniotakis, 232 AD2d 369; Vatel v City of New York, 208 AD2d 524). Here, given the conduct of the appellants, the Supreme Court providently exercised its discretion in striking their answer and precluding them from testifying at trial. Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.

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Bluebook (online)

270 A.D.2d 317, 705 N.Y.S.2d 239, 2000 N.Y. App. Div. LEXIS 2697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lones-v-lampeas-nyappdiv-2000.

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