| Xiao Yang Chen v Fischer |
| 2010 NY Slip Op 04581 [73 AD3d 1167] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Xiao Yang Chen, Respondent, v Ian Ira Fischer,Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.), datedJanuary 27, 2009, as denied that branch of his motion which was to dismiss, due to spoliation ofevidence and pursuant to CPLR 3126, the causes of action alleging injuries to the plaintiff's leftear.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exerciseof discretion, with costs, and that branch of the defendant's motion which was to dismiss theplaintiff's causes of action alleging injuries to her left ear is granted.
"Although actions should be resolved on the merits whenever possible, the court may,among other things, issue an order 'striking out pleadings or parts thereof' (CPLR 3126 [3]) whena party 'refuses to obey an order for disclosure or wilfully fails to disclose information which thecourt finds ought to have been disclosed' (CPLR 3126)" (Ingoglia v Barnes & Noble Coll.Booksellers, Inc., 48 AD3d 636, 636-637 [2008] [citations omitted]; see DiDomenico vC & S Aeromatik Supplies, 252 AD2d 41 [1998]). Furthermore, "when a party fails tocomply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is wellwithin the Trial Judge's discretion to dismiss the complaint" (Kihl v Pfeffer, 94 NY2d118, 122 [1999]). Striking a pleading in its entirety may be warranted where the offendingparty's conduct was wilful or contumacious (see Geffner v North Shore Univ. Hosp., 57AD3d 839, 841 [2008]).
It is clear from this record that the plaintiff wilfully and contumaciously defied discoveryorders of the Supreme Court by deleting from her computer's hard drive materials that she hadbeen directed to produce. Although the Supreme Court granted that branch of the defendant'smotion which was to dismiss so much of the complaint as sought recovery for lost earnings anddamages for cognitive deficits allegedly sustained by the plaintiff, it denied that branch of themotion which was to dismiss the plaintiff's remaining causes of action, which involved allegedinjuries to her left ear. Under the particular circumstances of this case, we find that theappropriate sanction for the plaintiff's conduct was the dismissal of the complaint in its entirety.Accordingly, the Supreme Court improvidently exercised its discretion in [*2]denying that branch of the defendant's motion which was to dismissthe plaintiff's causes of action regarding alleged injuries to her left ear (see Kihl vPfeffer, 94 NY2d at 122; Geffner v North Shore Univ. Hosp., 57 AD3d at 841;Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d at 636-637;DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41 [1998]). Rivera, J.P., Fisher,Florio and Austin, JJ., concur.