| MacDonald v Leif |
| 2011 NY Slip Op 08568 [89 AD3d 995] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Scott MacDonald, Appellant, v Jack Leif,Respondent. |
—[*1] Gregory J. Sutton, Garden City, N.Y. (Lorraine M. Korth of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (Asarch, J.), entered January 5, 2011, which granted the defendant'smotion pursuant to CPLR 3126 to dismiss the complaint.
Ordered that the order is affirmed, with costs.
"Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against aparty who refuses to comply with court-ordered discovery is a matter within the discretion of the court.A determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLRshould not be disturbed absent an improvident exercise of discretion" (Duncan v Hebb, 47 AD3d 871, 871[2008] [internal quotation marks and citation omitted]; see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]).Although actions should be resolved on the merits whenever possible, where the conduct of theresisting party is shown to be willful and contumacious, the striking of a pleading is warranted (see Brown v Astoria Fed. Sav., 51 AD3d961, 962 [2008]; Martin v City of NewYork, 46 AD3d 635 [2007]; Maiorino v City of New York, 39 AD3d 601 [2007]). Willful andcontumacious conduct may be inferred from a party's repeated failure to comply with court-ordereddiscovery, coupled with inadequate explanations for the failures to comply (see Matone v Sycamore Realty Corp., 87AD3d 1113 [2011]; Duncan v Hebb, 47 AD3d at 871; Maiorino v City of NewYork, 39 AD3d at 602).
Here, the plaintiff's willful and contumacious conduct can be inferred from his failure, over anextended period of time, to comply with the defendant's demands for discovery and the court's ordersdirecting disclosure (see Matone v SycamoreRealty Corp., 87 AD3d 1113 [2011]), and the inadequate excuse offered to justify thefailures (see Maiorino v City of New York, 39 AD3d at 602; Matter of Denton v City of Mount Vernon,30 AD3d 600, 601 [2006]). Accordingly, under the circumstances of this case, the SupremeCourt providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3126 todismiss the complaint. Mastro, J.P., Balkin, Chambers and Sgroi, JJ., concur.