| Mazza v Seneca |
| 2010 NY Slip Op 03077 [72 AD3d 754] |
| April 13, 2010 |
| Appellate Division, Second Department |
| James Mazza, Plaintiff, and Vincenzo Impeduglia,Appellant-Respondent, v Anthony Seneca et al.,Respondents-Appellants. |
—[*1] Barry, McTiernan & Wedinger, Staten Island, N.Y. (Laurel A. Wedinger of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for a violation of Labor Law § 220, theplaintiff Vincenzo Impeduglia appeals from (1) so much of an order of the Supreme Court, KingsCounty (Kramer, J.), dated May 19, 2008, as denied his motion pursuant to CPLR 3126 to strikethe defendants' answer or to direct the defendants to comply with outstanding discovery requests,or, pursuant to CPLR 3042 to preclude the defendants from offering evidence at the time of trial,and (2) an order of the same court dated October 23, 2008, which, in effect, granted that branchof the defendants' motion which was pursuant to CPLR 325 (d) to transfer the action to the CivilCourt, Kings County, and the defendants cross-appeal from (1) so much of the order dated May19, 2008, as denied their cross motion for a protective order, and (2) the order dated October 23,2008.
Ordered that the defendants' cross appeal from the order dated October 23, 2008, isdismissed, without costs or disbursements, as the defendants are not aggrieved by that order(see CPLR 5511); and it is further,
Ordered that the order dated May 19, 2008, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements, and it is further,
Ordered that the order dated October 23, 2008, is affirmed, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying the motion of the plaintiffVincent Impeduglia (hereinafter the plaintiff), inter alia, pursuant to CPLR 3126 to strike thedefendants' answer. A court may strike an answer as a sanction if a defendant "refuses to obey anorder for disclosure or wilfully fails to disclose information which the court finds ought to havebeen disclosed" (CPLR 3126). However, the drastic remedy of striking an answer isinappropriate absent a clear showing that the defendant's failure to comply with discoverydemands was willful or contumacious (see Conciatori v Port Auth. of N.Y. & N.J., 46 AD3d 501, 504[2007]; Morano v Westchester Paving& Sealing Corp., 7 AD3d 495 [2004]). The plaintiff failed to make such a showing.Moreover, under the circumstances of this case, even the lesser sanction of preclusion would nothave been appropriate.
The Supreme Court providently exercised its discretion in transferring this action to the CivilCourt, Kings County (see CPLR 325 [d]; Lleshanaku v Kenmore Assoc., 309AD2d 545 [2003]; Chico v Nadler, 300 AD2d 105 [2002]).
We do not reach the defendants' contention concerning that branch of their motion whichwas for summary judgment dismissing the complaint, as that branch of the motion was notaddressed by the Supreme Court. Thus, that branch of the motion remains pending andundecided (see Magriples vTekelch, 53 AD3d 532 [2008]; Katz v Katz, 68 AD2d 536, 542-543 [1979]).
The parties' remaining contentions either have been rendered academic or are without merit.Covello, J.P., Florio, Eng and Chambers, JJ., concur.