| Edwards v Prescott Cab Corp. |
| 2013 NY Slip Op 06343 [110 AD3d 671] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Nathalie E. Edwards et al., Respondents, v PrescottCab Corp. et al., Appellants. |
—[*1] Tantleff & Kreinces, LLP, Mineola, N.Y. (Matthew R. Kreinces of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal (1),as limited by their brief, from so much of an order of the Supreme Court, Kings County(Schack, J.), dated June 18, 2012, as granted that branch of the plaintiffs' motion whichwas to strike the answer insofar as asserted by the defendant Raja Jurat Hossain forrepeated failure to comply with discovery orders, and to preclude that defendant fromtestifying at trial, and (2) from an order of the same court dated June 20, 2012, whichdenied their cross motion for summary judgment dismissing the complaint on the groundthat the plaintiff Nathalie E. Edwards did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the appeal by the defendant Prescott Cab Corp. from so much of theorder dated June 18, 2012, as granted that branch of the plaintiffs' motion which was tostrike the answer insofar as asserted by the defendant Raja Jurat Hossain is dismissed, asthe defendant Prescott Cab Corp. is not aggrieved thereby (see CPLR 5511); andit is further,
Ordered that the order dated June 18, 2012, is affirmed insofar as appealed from bythe defendant Raja Jurat Hossain; and it is further;
Ordered that the order dated June 20, 2012, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
"[A] trial court is given broad discretion to oversee the discovery process"(Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). Although actionsshould be resolved on the merits wherever possible (see Cruzatti v St. Mary'sHosp., 193 AD2d 579, 580 [1993]), a court may strike the "pleadings or partsthereof" (CPLR 3126 [3]) as a sanction against a party who "refuses to obey an order fordisclosure or wilfully fails to disclose information which the court finds ought to havebeen disclosed" (CPLR 3126). While the nature and degree of the sanction to be imposedon a motion pursuant to CPLR 3126 is a matter of discretion with the court (see Sotov City of Long Beach, 197 AD2d 615, 616 [1993]; Spira v Antoine, 191AD2d 219 [1993]), "striking an answer is inappropriate absent a clear showing that thefailure to comply with discovery demands is willful, contumacious, or in bad faith"(Harris v City of New York, 211 AD2d 663, 664 [1995]). The litigants' willfuland contumacious conduct [*2]can be inferred from theirrepeated failures to comply with court orders directing disclosure (see Espinal v Cityof New York, 264 AD2d 806 [1999]) and the inadequate excuses offered to justifythe defaults (see Porreco v Selway, 225 AD2d 752, 753 [1996]; DeGennaro vRobinson Textiles, 224 AD2d 574 [1996]).
At the time the plaintiffs moved to strike the answer, more than six years aftercommencing this action, the defendant Raja Jurat Hossain still had not appeared for hisdeposition, in violation of two discovery orders. In opposition to the motion, defensecounsel's in-house investigator stated that he had been unable to locate Hossain. Underthese circumstances, the Supreme Court providently exercised its discretion in grantingthat branch of the plaintiffs' motion which was to strike the answer insofar as asserted byHossain (see Montgomery v City of New York, 296 AD2d 386, 386-387 [2002]).
The Supreme Court also properly denied the defendants' cross motion for summaryjudgment dismissing the complaint, which was made on the ground that the plaintiffNathalie E. Edwards (hereinafter the injured plaintiff) did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d). The defendants failed to meettheir prima facie burden of demonstrating that the injured plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants' motion papersfailed to adequately address the plaintiffs' claim, clearly set forth in the bill of particulars,that the injured plaintiff sustained a serious injury to her hip (see Staff v Yshua, 59 AD3d614 [2009]).
Since the defendants failed to meet their prima facie burden, it is unnecessary todetermine whether the papers submitted by the plaintiffs in opposition were sufficient toraise a triable issue of fact (seegenerally Stukas v Streiter, 83 AD3d 18, 24 [2011]). Dillon, J.P., Leventhal,Chambers and Miller, JJ., concur.