| Rini v Blanck |
| 2010 NY Slip Op 04982 [74 AD3d 941] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Geraldine Rini, Individually and as Administratrix of the Estate ofMichael Rini, Deceased, Appellant, v Richard Blanck et al., Defendants, and StephenGulotta, Respondent. |
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In an action to recover damages for medical malpractice, etc., the plaintiff appeals from ajudgment of the Supreme Court, Queens County (Hart, J.), entered May 3, 2006, which, upon thegranting of the motion of the defendant Stephen Gulotta, in effect, to dismiss the complaintinsofar as asserted against him as a sanction for the plaintiff's failure to disclose certaininformation, dismissed the complaint insofar as asserted against that defendant.
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, the motion of the defendant Stephen Gulotta, in effect, to dismiss thecomplaint insofar as asserted against him as a sanction for the plaintiff's failure to disclosecertain information is denied, the complaint is reinstated insofar as asserted against the defendantStephen Gulotta, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings before a different Justice.
A court may dismiss an action as a sanction if a plaintiff "refuses to obey an order fordisclosure or wilfully fails to disclose information which the court finds ought to have beendisclosed" (CPLR 3126). However, the drastic remedy of dismissal is inappropriate absent aclear showing that the plaintiff's failure to comply with disclosure obligations was willful andcontumacious (see Kesar v Green RidgeEnters. Corp., 30 AD3d 471 [2006]; Blake v Chawla, 299 AD2d 437, 440[2002]; Yona v Beth Israel Med. Ctr., 285 AD2d 460, 461 [2001]). Here, the record doesnot demonstrate that the plaintiff's failure to disclose certain information was willful andcontumacious. Accordingly, the Supreme Court improvidently exercised its discretion ingranting the motion of the defendant Stephen Gulotta, in effect, to dismiss the complaint insofaras asserted against him as a sanction for the plaintiff's failure to disclose certain information.
Under the circumstances of this case, we deem it appropriate to remit the matter to theSupreme Court, Queens County, for further proceedings before a different Justice. Dillon, J.P.,Miller, Dickerson and Chambers, JJ., concur.