Martel v. Chupka

26 A.D.3d 474, 809 N.Y.S.2d 469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Lifson, J.), entered December 2, 2004, which, upon an order of the same court dated October 8, 2003, granting the defendants’ motion pursuant to CPLR 3126 to dismiss the complaint, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs failed to respond to the defendants’ discovery demands for almost one year, violated a so-ordered stipulation directing that their depositions be conducted on a certain date, and violated a court order which, inter alia, warned them that the complaint would be dismissed if they did not serve a bill of particulars within 10 days of service of the order upon them. The plaintiffs made no attempt to provide discovery responses until after the defendants’ second motion to dismiss the complaint pursuant to CPLR 3126.

The plaintiffs’ wilfulness can be inferred from their repeated disregard for the discovery demands and court orders (see Mendez v City of New York, 7 AD3d 766, 767 [2004]). In opposition to the present motion, the plaintiffs failed to present any excuse for their noncompliance. Under the circumstances, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to dismiss the complaint (see Royal Caterers, LLC v Marine Midland, 8 AD3d 549 [2004]; Alto v Gilman Mgt. Corp., 7 AD3d 650 [2004]). Florio, J.P., Schmidt, Spolzino and Lunn, JJ., concur.