| Dokaj v Ruxton Tower Ltd. Partnership |
| 2012 NY Slip Op 00483 [91 AD3d 812] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Don Dokaj et al., Appellants, v Ruxton Tower LimitedPartnership et al., Respondents, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C. (Louise M. Cherkis of counsel),for respondents Ruxton Tower Limited Partnership, Jeffrey B. Lewis, and Eric D. Rosenfeld, anddefendant Ruxton Associates. Costello, Shea & Gaffney, LLP, New York, N.Y. (Alan T. Blutman and Patrick G. Reidy ofcounsel), for respondent Armor Kone Elevator Co., Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Brathwaite Nelson,J.), dated September 21, 2010, as (1) denied their motion, in effect, to vacate a prior order of thesame court dated March 26, 2010, granting the unopposed motion of the defendant Armor KoneElevator Co., Inc., pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against itbased upon their failure to comply with court-ordered discovery, (2) denied their separate motion,inter alia, pursuant to CPLR 3126 to strike the answers of the defendants Ruxton Tower LimitedPartnership, Jeffrey B. Lewis, and Eric D. Rosenfeld, and the defendant Armor Kone ElevatorCo., Inc., and (3) granted the motion of the defendants Ruxton Tower Limited Partnership,Jeffrey B. Lewis, and Eric D. Rosenfeld pursuant to CPLR 3126 to dismiss the complaint insofaras asserted against them based upon the plaintiffs' failure to comply with court-ordereddiscovery.
Ordered that the order dated September 21, 2010, is affirmed insofar as appealed from, withone bill of costs payable to the respondents appearing separately and filing separate briefs.
In 1994, the injured plaintiffs, and their wives, suing derivatively, commenced this action torecover damages for personal injuries allegedly sustained on August 21, 1993, when the elevatorin which the injured plaintiffs were passengers suddenly fell several stories. In an order datedSeptember 21, 2010, the Supreme Court, inter alia, denied the plaintiffs' motion, in effect, tovacate a prior order granting the unopposed motion of the defendant Armor Kone Elevator Co.,Inc. (hereinafter Armor), pursuant to CPLR 3126 to dismiss the complaint insofar as assertedagainst it based upon the plaintiffs' failure to comply with court-ordered discovery, denied theplaintiffs' separate motion, among other things, pursuant to CPLR 3126 to strike the answers ofArmor and the [*2]defendants Ruxton Tower LimitedPartnership, Jeffrey B. Lewis, and Eric D. Rosenfeld (hereinafter collectively Ruxton), andgranted Ruxton's motion pursuant to CPLR 3126 to dismiss the complaint insofar as assertedagainst it based upon the plaintiffs' failure to comply with discovery. The plaintiffs appeal, andwe affirm the order dated September 21, 2010, insofar as appealed from.
A party seeking to vacate an order entered upon his or her default in opposing a motion mustdemonstrate both a reasonable excuse for the default and a potentially meritorious opposition tothe motion (see Karamuco v Cohen,90 AD3d 998 [2d Dept 2011];Donovan v Chiapetta, 72 AD3d 635 [2010]). The determination of what constitutes areasonable excuse for a default lies within the trial court's discretion (see Hageman v Home Depot U.S.A.,Inc., 25 AD3d 760, 761 [2006]; Matter of Gambardella v Ortov Light., 278AD2d 494, 495 [2000]). Here, the plaintiffs did not demonstrate a reasonable excuse for failingto oppose Armor's motion pursuant to CPLR 3126 to dismiss the complaint insofar as assertedagainst it (see CPLR 5015 [a] [1]). Furthermore, the plaintiffs failed to demonstrate areasonable excuse for their failure to comply with court-ordered discovery (see Tutt v City of Yonkers, 11 AD3d532 [2004]; Rodriguez v New YorkMethodist Hosp., 3 AD3d 526, 527 [2004]). The plaintiffs also failed to demonstrate apotentially meritorious opposition to Armor's motion (cf. Caprio v 1025 Manhattan Ave. Corp., 63 AD3d 656, 657[2009]). Accordingly, the Supreme Court properly denied the plaintiffs' motion, in effect, tovacate the order granting Armor's unopposed motion pursuant to CPLR 3126 to dismiss thecomplaint insofar as asserted against it.
The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 iswithin the broad discretion of the motion court (see Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 [2011]; Novick v DeRosa, 51 AD3d 885[2008]). "A determination to impose sanctions for conduct which frustrates the disclosurescheme of the CPLR should not be disturbed absent an improvident exercise of discretion" (Duncan v Hebb, 47 AD3d 871,871 [2008]; see MacDonald v Leif,89 AD3d 995 [2011]; Savin vBrooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). The striking of a pleading maybe warranted where the conduct of a party is shown to be willful and contumacious (see Brown v Astoria Fed. Sav., 51AD3d 961, 962 [2008]; McArthur vNew York City Hous. Auth., 48 AD3d 431 [2008]).
Here, the willful and contumacious nature of the plaintiffs' conduct can be inferred from theirfailure, over an extended period of time, to comply with Ruxton's discovery demands and thecourt's orders directing disclosure, and the absence of an adequate excuse for the failure tocomply (see MacDonald v Leif, 89 AD3d at 995; Novick v DeRosa, 51 AD3d at885). Accordingly, the Supreme Court providently exercised its discretion in granting Ruxton'smotion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it.
The plaintiffs' remaining contention is without merit. Dillon, J.P., Lott, Roman and Cohen,JJ., concur.