| Flynn v City of New York |
| 2012 NY Slip Op 08484 [101 AD3d 803] |
| December 12, 2012 |
| Appellate Division, Second Department |
| William Flynn, Appellant-Respondent, v City of NewYork, Respondent-Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and TahirihM. Sadrieh of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), datedJune 16, 2010, as, in effect, denied that branch of his motion which was pursuant to CPLR 3126to strike the defendant's answer, and the defendant cross-appeals, as limited by its brief, from somuch of the same order dated June 16, 2010, as, sua sponte, directed it to produce all documentsin its possession pertaining to protective clothing for firefighters known as "bunker gear," inaccordance with a schedule to be determined by a court-appointed referee, and (2) the plaintiffseparately appeals, as limited by his brief, from so much of an order of the same court dated June2, 2011, as, upon renewal, adhered to its original determination in the order dated June 16, 2010,denying that branch of his motion which was pursuant to CPLR 3126 to strike the defendant'sanswer, and the defendant separately cross-appeals, as limited by its brief, from so much of thesame order dated June 2, 2011, as, sua sponte, directed it to comply with an order of acourt-appointed referee dated July 23, 2010, directing it to produce all documents concerning"bunker gear," and precluding it from introducing at trial any evidence relating to a personidentified and described as "the other Lt. Flynn," who is "not the same Lt. Flynn as plaintiff."
Ordered that the appeal and cross appeal from the order dated June 16, 2010, and the crossappeal from the order dated June 2, 2011, are dismissed; and it is further,
Ordered that the order dated June 2, 2011, is reversed insofar as appealed from, on the factsand in the exercise of discretion, upon renewal, the determination in the order dated June 16,2010, denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strikethe defendant's answer is vacated, that branch of the motion is thereupon granted, and the matteris remitted to the Supreme Court, Kings County, for an inquest on the issue of damages; and it isfurther,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order dated June 16, 2010, as denied that branch of theplaintiff's motion which was pursuant to CPLR 3126 to strike the answer must be dismissed, asthat portion of the order was superseded by so much of the order dated June 2, 2011, as wasmade upon renewal. The cross appeals from so much of the order dated June 16, 2010, as, suasponte, directed the defendant to produce certain documentation and so much of the order datedJune 2, 2011, as, sua sponte, directed the defendant to comply with an order of a court-appointedreferee dated July 23, 2010, must be dismissed because no cross appeal lies as of right from theseportions of the orders dated June 16, 2010, and June 2, 2011, which did not result from motionsmade on notice, and leave to cross-appeal has not been granted (see Cascardo v Stacchini, 100 AD3d675, 676-677 [2d Dept 2012]; Faello v Faello, 45 AD3d 728 [2007]; Warren v Hyman, 19 AD3d 481,481-482 [2005]).
" 'Generally, the trial court is afforded broad discretion in supervising disclosure and itsdetermination will not be disturbed unless that discretion has been clearly abused. . . However, the Appellate Division is vested with its own discretion andcorresponding power to substitute its own discretion for that of the trial court, even in theabsence of abuse' " (Byam v City ofNew York, 68 AD3d 798, 800 [2009], quoting Matter of Astor, 62 AD3d 867, 868 [2009] [internal quotationmarks omitted]).
Actions should be resolved on the merits wherever possible (see Maiorino v City of New York, 39AD3d 601, 601 [2007]). However, the striking of a pleading may be an appropriate sanctionwhere there is a clear showing that the failure to comply with discovery demands is willful orcontumacious (see Montemurro vMemorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066 [2012]; Byam v City ofNew York, 68 AD3d at 801). The willful or contumacious character of a party's conduct canbe inferred from the party's repeated failure to respond to demands or to comply with discoveryorders (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066).
Here, the willful and contumacious conduct of the defendant, City of New York, can beinferred from its repeated failures—over an extended period of time and without anadequate excuse—to comply with the plaintiff's discovery demands for the disclosure of"all" of the documents in the possession of the New York City Fire Department (hereinafter theFDNY) relating to the FDNY's determination to provide its members with protective "bunkergear," including documents dated prior to 1990, as well as to comply with several discoveryorders mandating such disclosure (see Montemurro v Memorial Sloan-Kettering CancerCtr., 94 AD3d at 1066-1067; PirroGroup, LLC v One Point St., Inc., 71 AD3d 654, 655 [2010]; Byam v City of NewYork, 68 AD3d at 801). Accordingly, upon renewal, that branch of the plaintiff's motionwhich was to strike the defendant's answer should have been granted. We, thus, remit the matterto the Supreme Court, Kings County, for an inquest on the issue of damages.
In view of our determination, we need not address the parties' remaining contentions. Skelos,J.P., Dickerson, Hall and Roman, JJ., concur.