Valladares v. Moutopoulos

Appellate Division of the Supreme Court of New York

Valladares v. Moutopoulos

10 A.D.3d 360, 780 N.Y.S.2d 758, 2004 N.Y. App. Div. LEXIS 10140

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

DecidedAugust 2, 2004

StatusPublished

This text of 10 A.D.3d 360 (Valladares v. Moutopoulos) 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

Valladares v. Moutopoulos, 10 A.D.3d 360, 780 N.Y.S.2d 758, 2004 N.Y. App. Div. LEXIS 10140 (N.Y. Ct. App. 2004).

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Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated July 29, 2003, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the branch of the motion which was to dismiss the complaint pursuant to CPLR 3126 is granted, and the complaint is dismissed.

Although “[t]he nature and degree of the penalty to be imposed for the willful failure to obey an order of disclosure is a matter lying within the sound discretion of the court” (D.A.D. Rest, v North Riv. Ins. Co., 204 AD2d 510 [1994]), the Supreme Court improvidently exercised that discretion when it denied that branch of the motion which was pursuant to CPLR 3126 to dismiss the complaint. The plaintiff repeatedly, and without explanation, refused to supply the current address of her daughter and son-in-law, who, at the time of the accident, were tenants at the premises where she allegedly slipped and fell. Considering the close family relationship and the plaintiff’s unexcused failure to provide this information in response to [361]*361multiple requests and in defiance of two court orders, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3126 to dismiss the complaint (see Wiltos v 1230 Park Owners, Inc., 1 AD3d 353, 354 [2003]; Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630 [2001]). Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.

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In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated July 29, 2003, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the branch of the motion which was to dismiss the complaint pursuant to CPLR 3126 is granted, and the complaint is dismissed.

Although “[t]he nature and degree of the penalty to be imposed for the willful failure to obey an order of disclosure is a matter lying within the sound discretion of the court” (D.A.D. Rest, v North Riv. Ins. Co., 204 AD2d 510 [1994]), the Supreme Court improvidently exercised that discretion when it denied that branch of the motion which was pursuant to CPLR 3126 to dismiss the complaint. The plaintiff repeatedly, and without explanation, refused to supply the current address of her daughter and son-in-law, who, at the time of the accident, were tenants at the premises where she allegedly slipped and fell. Considering the close family relationship and the plaintiff’s unexcused failure to provide this information in response to [361]*361multiple requests and in defiance of two court orders, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3126 to dismiss the complaint (see Wiltos v 1230 Park Owners, Inc., 1 AD3d 353, 354 [2003]; Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630 [2001]). Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.

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Bluebook (online)

10 A.D.3d 360, 780 N.Y.S.2d 758, 2004 N.Y. App. Div. LEXIS 10140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valladares-v-moutopoulos-nyappdiv-2004.

Opinion

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