Watson v. Hall

43 A.D.3d 435, 842 N.Y.S.2d 451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 2007
• Status: Published

Opinion

In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered July 27, 2006, which granted the defendant’s motion pursuant to CPLR 3126 to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in dismissing the complaint. Although dismissal of a complaint for failure to comply with a disclosure order pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful and contumacious (see Devito v J & J Towing, Inc., 17 AD3d 624, 625 [2005]; Schwartz v Suebsanguan, 15 AD3d 565, 566 [2005]; cf. Prappas v Papadatos, 38 AD3d 871, 872-873 [2007]; Russo v Tolchin, 35 AD3d 431, 434-435 [2006]). The plaintiffs willful and contumacious conduct can be inferred from his repeated failures to adequately respond to the defendant’s discovery demands, even after he was directed to do so by court order, as well as his inadequate explanation for his failures to comply (see Devito v J & J Towing, Inc., supra; Schwartz v Suebsanguan, supra-, Rowell v Joyce, 10 AD3d 601 [2004]). Crane, J.P., Santucci, Florio, Dillon and Balkin, JJ., concur.