| Umar v Ohrnberger |
| 2010 NY Slip Op 03434 [72 AD3d 1066] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Bibi Umar, Appellant, v June Ohrnberger, Respondent, etal., Defendant. |
—[*1] Russo & Apoznanski, Westbury, N.Y. (Susan J. Mitola of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Palmieri, J.), dated July 15, 2009, which granted the motionof the defendant June Ohrnberger pursuant to CPLR 3126 to dismiss the complaint insofar asasserted against her for failure to comply with court-ordered disclosure.
Ordered that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within thesound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Joseph v Iannace, 6 AD3d 502,503 [2004]; Ordonez v Guerra, 295 AD2d 325, 326 [2002]). The drastic remedy ofdismissing a complaint for a plaintiff's failure to comply with court-ordered discovery iswarranted where the failure to comply with discovery demands is willful and contumacious (see Rowell v Joyce, 10 AD3d 601[2004]; My Carpet, Inc. v Bruce SupplyCorp., 8 AD3d 248 [2004]). Here, the willful and contumacious character of theplaintiff's conduct can be inferred from her repeated failure to respond to demands and/or tocomply with discovery orders or to offer a reasonable excuse for her lack of compliance (see Horne v Swimquip, Inc., 36 AD3d859, 861 [2007]; Sowerby vCamarda, 20 AD3d 411 [2005]; Bodine v Ladjevardi, 284 AD2d 351, 352[2001]; Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630[2001]). Accordingly, the Supreme Court did not improvidently exercise its discretion ingranting the motion of the defendant June Ohrnberger. Rivera, J.P., Florio, Miller, Chambers andRoman, JJ., concur.