| Greene v Mullen |
| 2010 NY Slip Op 01615 [70 AD3d 996] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Micah Greene et al., Appellants, v Lula A. Mullen et al.,Respondents. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (John Sandercock and Steven B.Prystowsky of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated March6, 2009, as granted that branch of their motion which was pursuant to CPLR 3126 to strike thedefendants' answer only to the extent of precluding the defendant Ruby Mullen from testifying attrial and directing the defendants to respond to a notice for discovery and inspection dated March14, 2008, and denied that branch of their motion which was to strike the answer insofar asinterposed by the defendant Lula A. Mullen.
Ordered that the order is affirmed insofar as appealed from, with costs.
"The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is amatter generally left to the discretion of the Supreme Court" (Reyes v Vanderbilt, 303AD2d 391, 391 [2003], quoting Patterson v New York City Health & Hosps. Corp. [QueensHosp. Ctr.], 284 AD2d 516, 516-517 [2001]; see Carbajal v Bobo Robo, Inc., 38AD3d 820, 821 [2007]). However, to invoke the drastic remedy of striking a pleading, or ofpreclusion, a court must determine that the party's failure to disclose is willful and contumacious(see Anthony v Anthony, 24 AD3d 694 [2005]; Mangiapane v Brookhaven BeachHealth Related Facility, 305 AD2d 642, 643 [2003]; Patterson v New York City Health& Hosps. Corp. [Queens Hosp. Ctr.], 284 AD2d at 517).
Here, there was no showing that the failure of the defendant Lula A. Mullen (hereinafterLula) to comply with the plaintiffs' notices for discovery and inspection was willful andcontumacious (cf. Maiorino v City of New York, 39 AD3d 601, 602 [2007]; Horne vSwimquip, Inc., 36 AD3d 859, 861 [2007]). Furthermore, the plaintiffs proffered noevidence that Lula exercised control over the defendant Ruby Mullen (hereinafter Ruby) andthus was responsible for Ruby's failure to appear for her deposition (see Carabello vLuna, 49 AD3d 679, 680 [2008]; Tolz v Valente, 39 AD3d 737, 738 [2007];Moriates v Powertest Petroleum Co., 114 AD2d 888, 890 [1985]; Stockman v MarksPolarized Corp., 25 AD2d 883 [1966]). Accordingly, the Supreme Court providentlyexercised its discretion in denying that [*2]branch of theplaintiffs' motion which was to strike the answer insofar as interposed by Lula. Rivera, J.P.,Florio, Dickerson, Belen and Roman, JJ., concur.