| Montemurro v Memorial Sloan-Kettering Cancer Ctr. |
| 2012 NY Slip Op 03152 [94 AD3d 1066] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Lina Montemurro, Appellant, et al., Plaintiff, v MemorialSloan-Kettering Cancer Center et al., Respondents, et al.,Defendants. |
—[*1] Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), forrespondents Memorial Sloan-Kettering Cancer Center, Memorial Hospital for Cancer and AlliedDisease, and Manjit S. Bains. Chesney & Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), for respondentMichael Melgar.
In an action to recover damages for medical malpractice, etc., the plaintiff Lina Montemurroappeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated March 29, 2010, as granted those branches of the separate motions of thedefendant Michael Melgar, and the defendants Memorial Sloan-Kettering Cancer Center,Memorial Hospital for Cancer and Allied Disease, and Manjit S. Bains, which were to strike thecomplaint insofar as asserted against each of them by her pursuant to CPLR 3126 for failure tocomply with discovery orders.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
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 [1999]; Friedman, Harfenist, Langer & Kraut vRosenthal, 79 AD3d 798, 800 [2010]). The striking of a pleading may be appropriatewhere there is a clear showing that the failure to comply with discovery demands is willful orcontumacious (see Commisso vOrshan, 85 AD3d 845, 845 [2011]; Friedman, Harfenist, Langer & Kraut vRosenthal, 79 AD3d at 800; Byam vCity of New York, 68 AD3d 798, 800 [2009]). The willful or contumacious character ofa party's conduct can be inferred from the party's repeated failure to respond to demands or tocomply with discovery orders (see Commisso v Orshan, 85 AD3d at 845; Giano v Ioannou, 78 AD3d 768,771 [2010]; Northfield Ins. Co. v ModelTowing & Recovery, 63 AD3d 808, 809 [2009]; McArthur v New York City Hous. Auth., 48 AD3d 431, 431[2008]; Bomzer v Parke-Davis, Div. ofWarner Lambert Co., 41 AD3d 522 [2007]; Maiorino v City of New York, 39 AD3d 601, 602 [2007]; Cafaro v Emergency Servs. Holding,Inc., 11 AD3d 496, 498 [2004]).[*2]
Contrary to the appellant's contentions, the willful orcontumacious character of the conduct at issue could properly be inferred by the court from herrepeated failures, without an adequate excuse, to comply with discovery demands and the court'sdiscovery orders to provide certain disclosure (see Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 [2011]; Bort v Perper, 82 AD3d 692, 694[2011]; Howe v Jeremiah, 51 AD3d975, 975-976 [2008]; cf. Hoi WahLai v Mack, 89 AD3d 990 [2011]; Batshever v Jafar, 73 AD3d 1108 [2010], cert denied 565US —, 132 S Ct 138 [2011]; Hanlon v Rosenthal, 7 AD3d 758, 759 [2004]). Accordingly, theSupreme Court properly granted those branches of the separate motions of the defendant MichaelMelgar, and the defendants Memorial Sloan-Kettering Cancer Center, Memorial Hospital forCancer and Allied Disease, and Manjit S. Bains, which were to strike the complaint insofar asasserted against each of them by the appellant pursuant to CPLR 3126.
The appellant's remaining contentions are not properly before this Court. Skelos, J.P.,Dickerson, Austin and Miller, JJ., concur.