Poulas v. U-Haul International Inc.

288 A.D.2d 202, 732 N.Y.S.2d 579, 2001 N.Y. App. Div. LEXIS 10452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated December 22, 2000, which granted the defendants’ motion pursuant to CPLR 3126 to strike the complaint for his failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

“To invoke the drastic remedy of striking a pleading, the court must determine that the party’s failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent (see, CPLR 3126; Harris v City of New York, 211 AD2d 663, 664; Lestingi v City of New York, 209 AD2d 384)” (Martignetti v Ricevuto, 271 AD2d 508, 509). The willful and contumacious character of a party’s conduct can be inferred from his or her repeated failures to comply with disclosure, coupled with inadequate excuses for those defaults (see, Kingsley v Kantor, 265 AD2d 529; Brady v County of Nassau, 234 AD2d 408; Garcia v Kraniotakis, 232 AD2d 369; Mills v Ducille, 170 AD2d 657). The determination whether to strike a pleading lies within the sound discretion of the Supreme Court (see, Zletz v Wetanson, 67 NY2d 711; Kubacka v Town ofN. Hempstead, 240 AD2d 374).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to strike the complaint for the plaintiff’s repeated and inadequately explained failure to appear for court-ordered physical examinations. Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.