| Rizzuti v Laucella |
| 2008 NY Slip Op 09979 [57 AD3d 755] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Angela Rizzuti et al., Appellants, v Michael Laucella et al.,Respondents. |
—[*1] Mark A. Spiritis, Mineola, N.Y. (Charles E. Holster III of counsel), for respondents.
In an action to recover damages for defamation, the plaintiffs appeal from an order of the SupremeCourt, Nassau County (Palmieri, J.) entered July 18, 2007, which granted the defendants' motion todismiss the complaint pursuant to CPLR 3126.
Ordered that the order is affirmed, with costs.
The plaintiffs Angela Rizzuti and Joseph Rizzuti, owners and operators of a hair salon, allegedlyfound a flyer on the lamp post outside their business purporting to advertise a fund raiser at their salonto benefit the Pediatric AIDS Foundation, which contained a photograph of the plaintiff Angela Rizzutiand stated, inter alia: "My husband Joseph and I have been fighting our HIV illness now for elevenyears."
The plaintiff commenced this action against Michael Laucella and Marie Laucella based uponallegations that the photograph on the flyer depicting the plaintiff Angela Rizzuti was cut out of a groupphotograph in which the defendant Marie Laucella also appeared and that a long-pending lawsuitbetween the plaintiff Joseph Rizzuti and the defendant Michael Laucella over a real estate transactioncreated "bad blood" between the families. The plaintiffs contended that they lost a significant amount ofbusiness due to the publication of this flyer and suffered emotional distress as well as financial losses.The defendants denied any connection to the offending flyer, and cross-claimed to recover damages formalicious prosecution.[*2]
In the course of discovery, the defendants demanded that theplaintiffs produce their tax returns and the appointment logs for their business. The plaintiffs refused toproduce these items, claiming that the privacy of clients and their business secrets would be violated.They did not, however, move for a protective order, while the defendants moved to compel productionof these items as well as to obtain long-overdue responses to interrogatories and their notice fordiscovery and inspection.
In an order dated February 7, 2007 the Supreme Court directed the plaintiffs to comply with thedefendants' notices for discovery and inspection and demand for interrogatories or, without furtherorder, their action would be dismissed. The plaintiffs' counsel sent cursory responses to the defendant'sdiscovery demands that were inadequate in content and unverified by either of the parties or by anyperson claiming knowledge of the facts asserted therein. As such, the purported responses may not beconsidered to be the sort of competent evidence that parties are required to disclose pursuant to duedemand or notice (see Warrington v RyderTruck Rental, Inc., 35 AD3d 455 [2006]).
Additionally, the plaintiffs continued to refuse to produce tax returns or appointment logs, andfinally, by letter of counsel dated March 2007, counsel for the first time asserted that a search for theappointment logs had been conducted and that they could not be located.
Upon the defendants' motion to dismiss the complaint, the court found that the plaintiffs' failure toproduce these records constituted spoliation of evidence, as the plaintiffs had made previously-possibledisclosure impossible. Furthermore, it held that the failure of the plaintiffs to move for a protective orderpursuant to CPLR 3103 permitted a negative inference to be drawn that the evidence was discardedafter service of the notice to produce was effected and the court order requiring its production wasentered (see Ferraro v Koncal Assoc., 97 AD2d 429 [1983]).
The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is amatter of discretion with the motion court (seeNovick v DeRosa, 51 AD3d 885 [2008]; Martin v City of New York, 46 AD3d 635 [2007]). The drastic remedyof dismissing a complaint or striking a pleading pursuant to CPLR 3126 (3) for failure to comply withcourt-ordered disclosure should be granted only where the conduct of the resisting party is shown to bewillful and contumacious (see Novick vDeRosa, 51 AD3d 885 [2008]; Martin v City of New York, 46 AD3d 635 [2007]; Bomzer v Parke-Davis, Div. of Warner LambertCo., 41 AD3d 522 [2007]).
Here, the plaintiffs' willful and contumacious conduct can be inferred from their failure to provideresponses to the defendants' discovery demands, failure to abide by court orders, unsupported,inconsistent excuses for their failure to produce documents, and the absence of any reasonable excusefor these failures (see Martin v City of NewYork, 46 AD3d 635 [2007]; Maiorino v City of New York, 39 AD3d 601 [2007]). Accordingly, theSupreme Court providently exercised its discretion in granting the defendants' motion to dismiss thecomplaint. Miller, J.P., Dickerson, Leventhal and Belen, JJ., concur.