Workman v. Town of Southampton

Appellate Division of the Supreme Court of New York

Workman v. Town of Southampton

69 A.D.3d 619, 892 N.Y.2d 481

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

DecidedJanuary 5, 2010

StatusPublished

Cited by15 cases

This text of 69 A.D.3d 619 (Workman v. Town of Southampton) 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.

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Workman v. Town of Southampton, 69 A.D.3d 619, 892 N.Y.2d 481 (N.Y. Ct. App. 2010).

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[620]*620“The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court” (McArthur v New York City Hous. Auth., 48 AD3d 431, 431 [2008]; see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643 [2005]; Niel v Rosenfeld, 12 AD3d 558, 559 [2004]). The willful and contumacious conduct can be inferred by a party’s repeated failure to respond to demands or to comply with discovery orders, absent a reasonable excuse (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]; Horne v Swimquip, Inc., 36 AD3d 859 [2007]; Sowerby v Camarda, 20 AD3d 411 [2005]; Rowell v Joyce, 10 AD3d 601 [2004]; Bodine v Ladjevardi, 284 AD2d 351, 352 [2001]). In this case, the willful and contumacious character of the plaintiffs conduct can be inferred from his repeated failure to comply with court orders directing him to provide properly-executed authorizations without a reasonable excuse. Although he allegedly orally objected to having to provide the authorizations, he did not make a motion, despite the court’s direction that he do so. Under these circumstances, the Supreme Court providently exercised its discretion in granting the. motions to dismiss the complaint (see Horne v Swimquip, Inc., 36 AD3d 859 [2007]; cf. Redmond v Jamaica Hosp. Med. Ctr., 62 AD3d 854 [2009]; Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583 [2008]).

In light of our determination, the plaintiffs remaining contentions are academic. Skelos, J.E, Dickerson, Eng and Sgroi, JJ., concur.

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[620]*620“The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court” (McArthur v New York City Hous. Auth., 48 AD3d 431, 431 [2008]; see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643 [2005]; Niel v Rosenfeld, 12 AD3d 558, 559 [2004]). The willful and contumacious conduct can be inferred by a party’s repeated failure to respond to demands or to comply with discovery orders, absent a reasonable excuse (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]; Horne v Swimquip, Inc., 36 AD3d 859 [2007]; Sowerby v Camarda, 20 AD3d 411 [2005]; Rowell v Joyce, 10 AD3d 601 [2004]; Bodine v Ladjevardi, 284 AD2d 351, 352 [2001]). In this case, the willful and contumacious character of the plaintiffs conduct can be inferred from his repeated failure to comply with court orders directing him to provide properly-executed authorizations without a reasonable excuse. Although he allegedly orally objected to having to provide the authorizations, he did not make a motion, despite the court’s direction that he do so. Under these circumstances, the Supreme Court providently exercised its discretion in granting the. motions to dismiss the complaint (see Horne v Swimquip, Inc., 36 AD3d 859 [2007]; cf. Redmond v Jamaica Hosp. Med. Ctr., 62 AD3d 854 [2009]; Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583 [2008]).

In light of our determination, the plaintiffs remaining contentions are academic. Skelos, J.E, Dickerson, Eng and Sgroi, JJ., concur.

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69 A.D.3d 619, 892 N.Y.2d 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/workman-v-town-of-southampton-nyappdiv-2010.

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