| Duncan v Hebb |
| 2008 NY Slip Op 00645 [47 AD3d 871] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Thomas Duncan et al., Respondents, v Carole A. Hebb,Appellant. |
—[*1] Steven Smedresman, P.C., New York, N.Y. (Gregory P. Haegele of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Cohalan J.), dated September 28, 2006, which granted theplaintiffs' motion to strike her answer, and for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
"Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126against a party who refuses to comply with court-Ordered discovery is a matter within thediscretion of the court" (Green vGreen, 32 AD3d 898, 899 [2006] [internal quotation marks omitted]). A determinationto impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should notbe disturbed absent an improvident exercise of discretion (see Green v Green, 32 AD3d 898 [2006]; Jaffe v Hubbard,299 AD2d 395, 396 [2002]). Striking a defendant's answer is a "drastic remedy," which is"inappropriate absent a clear showing that the failure to comply with discovery demands waswillful and contumacious" (Brandes vNorth Shore Univ. Hosp., 22 AD3d 778, 778 [internal quotation marks and citationsomitted]; see Simpson v City of NewYork, 10 AD3d 601, 602 [2004]). Willful and contumacious conduct may be inferredfrom a party's repeated failure to comply with court-ordered discovery, "coupled with inadequateexplanations for the failures to comply" (Devito v J & J Towing, Inc., 17 AD3d 624, 625 [2005]; seeTorres v Martinez , 250 AD2d 759 [1998]).[*2]
Here, the only explanation offered by the defendant forher repeated failure to comply with the so-ordered preliminary conference stipulation to appearfor depositions was that her attorneys were "unable to contact" her. Accordingly, the courtproperly inferred that the defendant's conduct was willful and contumacious, and providentlyexercised its discretion in granting that part of the plaintiffs' motion which was to strike thedefendant's answer.
There is no merit to the defendant's contention that the court erred in granting that branch ofthe plaintiffs' motion which was for summary judgment on the issue of liability. The plaintiffsestablished their prima facie entitlement to summary judgment on the issue of liability bysubmitting deposition testimony that the plaintiffs' vehicle was stopped at a red light when it wasrear-ended by the defendant's car. In opposition, the defendant offered no evidence to raise atriable issue of fact (see Nieves v JHHTransp., LLC, 40 AD3d 1060 [2007]; Carhuayano v J&R Hacking, 28 AD3d 413, 414 [2006];Shamah v Richmond County Ambulance Serv., 279 AD2d 564, 565 [2001]). Skelos, J.P.,Santucci, Lifson and Carni, JJ., concur.