| Perry v Town of Geneva |
| 2009 NY Slip Op 05815 [64 AD3d 1225] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| Clyde Perry et al., Appellants, v Town of Geneva,Respondent. |
—[*1] Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (J. Michael Wood ofcounsel), for defendant-respondent.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.),entered April 23, 2008 in a personal injury action. The order, insofar as appealed from, granteddefendant's motion for preclusion.
It is hereby ordered that the order so appealed from is unanimously modified in the exerciseof discretion by providing that the motion is granted unless plaintiff Clyde Perry, within 15 daysof service of the order of this Court with notice of entry, serves a verified bill of particularscomplying with each item of the demand for a bill of particulars and pays defendant's attorney$1,500 toward costs and attorney's fees as a sanction and as modified the order is affirmedwithout costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byClyde Perry (plaintiff) when he was catapulted from the all-terrain vehicle (ATV) he was ridingafter the ATV struck some logs that had been left on his property by defendant's employees.After plaintiffs repeatedly failed to provide responses to defendant's demand for a bill ofparticulars, defendant moved to preclude plaintiffs "from giving evidence/testimony on the trialof this action of the items of which particulars have not been delivered, as demanded." In itsattorney's reply affidavit, defendant also sought dismissal of the claim of plaintiff Rose Perrybased on her failure to comply with General Municipal Law § 50-i by serving defendantwith a notice of claim. Supreme Court, inter alia, granted the motion, and plaintiffs on appealchallenge only that part of the order concerning preclusion.
We conclude that the court improvidently exercised its discretion in determining thatpreclusion was appropriate. Generally, "[t]he nature and degree of the penalty to be imposed on aCPLR 3126 motion lies within the sound discretion of the trial court and will be disturbed only ifthere has been an abuse or [an] improvident exercise of discretion" (Kimmel v State of NewYork, 267 AD2d 1079, 1080 [1999]; see Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 37 AD3d1185, 1186-1187 [2007]). Nevertheless, this Court has repeatedly held that the striking of apleading is appropriate only " 'where there is a clear showing that the failure to comply withdiscovery [*2]demands is willful, contumacious, or in bad faith' "(Hill v Oberoi, 13 AD3d 1095,1096 [2004]; see e.g. Sayomi v RollsKohn & Assoc., LLP, 16 AD3d 1069 [2005]; Whitley v Industrial Funding Corp., 8 AD3d 963 [2004]).Defendant made no such showing in this case. Thus, in the exercise of our discretion we modifythe order by providing that the preclusion motion is granted unless plaintiff, within 15 days ofservice of the order of this Court with notice of entry, serves a verified bill of particularscomplying with each item of the demand and pays defendant's attorney $1,500 toward costs andattorney's fees as a sanction. Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.