| Morgenstern v Jeffsam Corp. |
| 2010 NY Slip Op 08544 [78 AD3d 913] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Neil Morgenstern, Appellant, v Jeffsam Corp. et al.,Respondents. |
—[*1] Bennett D. Krasner, Atlantic Beach, N.Y., for respondents.
In an action to recover damages for fraud, the plaintiff appeals from a judgment of theSupreme Court, Nassau County (Galasso, J.), dated June 4, 2009, which, upon an order of thesame court entered January 29, 2009, granting the defendants' motion pursuant to CPLR 3126 todismiss the complaint, and awarding the defendants a sanction, costs, and disbursements, is infavor of the defendants and against him dismissing the complaint and directing him to pay to thedefendants a sanction, costs, and disbursements in the total sum of $2,255.
Ordered that the judgment 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]; Umar v Ohrnberger, 72 AD3d1066 [2010]; Bernal v Singh,72 AD3d 716 [2010]). The dismissal of a complaint for a plaintiff's repeated failure tocomply with court-ordered discovery is warranted upon a clear showing that the failure to complywas willful and contumacious (seeWorkman v Town of Southampton, 69 AD3d 619 [2010]; Northfield Ins. Co. v Model Towing &Recovery, 63 AD3d 808 [2009]; Rowell v Joyce, 10 AD3d 601 [2004]; My Carpet, Inc. v Bruce Supply Corp.,8 AD3d 248 [2004]).
Here, the plaintiff's willful and contumacious conduct can be inferred from his repeatedfailure, over a period of more than 1½ years, to adequately respond to the defendants'discovery demands and to comply with stipulations to satisfy those requests, even after beingdirected to do so by court order, as well as by the absence of any reasonable excuse for hisnoncompliance (see Kihl v Pfeffer, 94 NY2d at 122-123; Batshever v Jafar, 73 AD3d 1108[2010]; Horne v Swimquip, Inc., 36AD3d 859 [2007]; Sowerby vCamarda, 20 AD3d 411 [2005]; Bodine v Ladjevardi, 284 AD2d 351 [2001];Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630 [2001]).Therefore, the Supreme Court did not improvidently exercise its discretion in dismissing thecomplaint.
Additionally, since the defendants endured delays and were required to seek judicialintervention on three separate occasions due to the plaintiff's willful and contumaciousnoncompliance with discovery, the Supreme Court did not improvidently exercise its discretionin directing the plaintiff to pay [*2]to the defendants a sanction,costs, and disbursements (see Negro vSt. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727 [2007]; Riley v ISS Intl. Serv.Sys., 304 AD2d 637 [2003]; Summit Waterproofing & Restoration Corp. v ScarsdaleCountry Estates Owners, 228 AD2d 431 [1996]; Keingarsky v Keingarsky, 145AD2d 537 [1988]). Significantly, the plaintiff was warned in a prior order that in the event hiscontinued noncompliance necessitated further judicial intervention, he would be assessed suchfees and costs.
Accordingly, the defendants' motion was properly granted. Skelos, J.P., Balkin, Eng andAustin, JJ., concur.