| Bernardis v Town of Islip |
| 2012 NY Slip Op 03792 [95 AD3d 1050] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Anthony Bernardis et al., Respondents, v Town of Islip,Defendant, and Judith Stein et al., Appellants. (And a Third-PartyAction.) |
—[*1] Bernard T. Callan, P.C., Central Islip, N.Y., for respondents.
In an action for injunctive relief and to recover damages for injury to property, the defendantsJudith Stein, David S.J. Neufeld, Gwendolyn Zegel, and Kenneth Stein III appeal from (1) anorder of the Supreme Court, Suffolk County (Whelan, J.), dated April 21, 2011, whichconditionally granted the plaintiffs' motion to quash a subpoena served upon a nonparty witness,and (2) an order of the same court dated October 13, 2011, which denied their motion, inter alia,pursuant to CPLR 3126 to strike the complaint, or, in the alternative, to preclude the nonpartywitness from testifying at trial or to direct the nonparty witness to appear for a deposition.
Ordered that the orders are affirmed, with one bill of costs.
The supervision of discovery, and the setting of reasonable terms and conditions fordisclosure, are matters within the sound discretion of the trial court (see Kooper v Kooper, 74 AD3d 6[2010]; Merkos L'Inyonei Chinuch, Inc.v Sharf, 59 AD3d 408 [2009];Downing v Moskovits, 58 AD3d 671 [2009]). The drastic remedy of striking acomplaint is inappropriate absent a clear showing that the plaintiff's failure to comply withdiscovery demands was willful and contumacious (see Polsky v Tuckman, 85 AD3d 750 [2011]; Mazza v Seneca, 72 AD3d 754[2010]; Comprehensive Care of N.Y.,P.C. v Manuel A. Romero, P.C., 56 AD3d 510 [2008]). Here, the Supreme Court did notimprovidently exercise its discretion in denying that branch of the motion of the defendantsJudith Stein, David S.J. Neufeld, Gwendolyn Zegel, and Kenneth Stein III (hereinaftercollectively the appellants) which was to strike the complaint on the ground that the plaintiffs'expert disclosure served pursuant to CPLR 3101 (d) (1) (i) was inadequate, as the appellantsfailed to make a clear showing that the plaintiffs' conduct was willful and contumacious (seePolsky v Tuckman, 85 AD3d at 750; Comprehensive Care of N.Y., P.C. v Manuel A. Romero, P.C., 56AD3d 510 [2008]; Anonymous vDuane Reade, Inc., 49 AD3d 479, 480 [2008]).
Furthermore, under the circumstances of this case, the Supreme Court did not improvidentlyexercise its discretion in denying, at this stage of the proceeding, that branch of the appellants'motion which was to preclude the plaintiffs' expert from testifying due to lack of "reasonabledetail" (CPLR 3101 [d] [1] [i]) in the plaintiffs' expert disclosure, since discovery [*2]necessary to the complete formulation of the plaintiffs' expert'sopinion had yet to be conducted.
The Supreme Court also did not improvidently exercise its discretion in denying that branchof the appellants' motion which was to direct nonparty witness William Lahti to appear for adeposition. Lahti was retained to serve as the plaintiffs' expert in this matter and, thus, theappellants were required to make a showing of special circumstances warranting his deposition(see CPLR 3101 [d] [i] [iii]; McGowan v Great N. Ins. Co., 88 AD3d 665, 666 [2011];Kooper v Kooper, 74 AD3d at 12). Here, the appellants failed to make such a showing.
The appellants' remaining contentions are without merit. Skelos, J.P., Dillon, Florio andBelen, JJ., concur.