| Workman v Town of Southampton |
| 2010 NY Slip Op 00142 [69 AD3d 619] |
| January 5, 2010 |
| Appellate Division, Second Department |
| David Workman, Appellant, v Town of Southampton etal., Defendants, and Gaslight Entertainment Ltd. et al., Respondents. |
—[*1] Zegen & Fellenbaum, New York, N.Y. (Scott A. Koltun of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from(1) an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated October 30, 2008,which, upon the plaintiff's failure to comply with a prior order of the same court dated June 5,2008, granting the motion of the defendants Joshua B. Zegen, Michael Romer, and GaslightEntertainment, Ltd., and the separate motion of the defendant Dennis Stuff, Inc., in effect,pursuant to CPLR 3126 to dismiss the complaint unless the plaintiff satisfied outstandingdiscovery demands and, after a compliance conference, granted those motions to dismiss thecomplaint, and (2) an order of the same court dated April 21, 2009, which denied the plaintiff'smotion, among other things, in effect, to leave to reargue the motions, in effect, pursuant toCPLR 3126 to dismiss the complaint.
Ordered that the appeal from so much of the order dated April 21, 2009, as denied thatbranch of the plaintiff's motion which was, in effect, for leave to reargue is dismissed, as soappeal lies from an order denying reargument; and it is further,
Ordered that the order dated October 30, 2008, is affirmed; and it is further;
Ordered that the order dated April 21, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within thesound 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 wherethere is a clear showing that the failure to comply with discovery demands is willful orcontumacious (see Northfield Ins. Co. vModel Towing & Recovery, 63 AD3d 808 [2009]; Kuzmin v Visiting Nurse Serv.of N.Y., 22 AD3d [*2]643 [2005]; Diel v Rosenfeld, 12 AD3d 558,559 [2004]). The willful and contumacious conduct can be inferred by a party's repeated failureto 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 AD3d859 [2007]; Sowerby v Camarda,20 AD3d 411 [2005]; Rowell vJoyce, 10 AD3d 601 [2004]; Bodine v Ladjevardi, 284 AD2d 351, 352 [2001]).In this case, the willful and contumacious character of the plaintiff's conduct can be inferredfrom his repeated failure to comply with court orders directing him to provide properly-executedauthorizations without a reasonable excuse. Although he allegedly orally objected to having toprovide 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 grantingthe 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]; Canaanv Costco Wholesale Membership, Inc., 49 AD3d 583 [2008]).
In light of our determination, the plaintiff's remaining contentions are academic. Skelos, J.P.,Dickerson, Eng and Sgroi, JJ., concur.