| Aha Sales, Inc. v Creative Bath Prods., Inc. |
| 2013 NY Slip Op 07001 [110 AD3d 1019] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Aha Sales, Inc., Respondent, v Creative BathProducts, Inc., Appellant, et al., Defendant. |
—[*1] Robert L. Folks & Associates, LLP, Melville, N.Y., for respondent.
In an action, inter alia, to recover damages in quantum meruit for services renderedand for unjust enrichment, the defendant Creative Bath Products, Inc., appeals from anorder of the Supreme Court, Suffolk County (Spinner, J.), dated November 29, 2011,which granted the plaintiff's motion pursuant to CPLR 3126 to preclude it from, interalia, presenting certain evidence at trial.
Ordered that the order is affirmed, with costs.
Pursuant to CPLR 3126, a court may impose discovery sanctions, including thestriking of a pleading or preclusion of evidence, where a party "refuses to obey an orderfor disclosure or wilfully fails to disclose information which the court finds ought to havebeen disclosed." The nature and degree of the penalty to be imposed under CPLR 3126 isa matter generally left to the court's discretion (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737,739 [2012]). To invoke the drastic remedy of preclusion, the court must determine thatthe offending party's lack of cooperation with disclosure was willful, deliberate, andcontumacious (see Moog v Cityof New York, 30 AD3d 490, 490 [2006]; Assael v Metropolitan Tr. Auth., 4 AD3d 443, 443 [2004]).The willful or contumacious character of a party's conduct can be inferred from theparty's repeated failure to comply with discovery demands or orders without a reasonableexcuse (see Arpino v F.J.F. &Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]; Montemurro v MemorialSloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066 [2012]).
Here, the plaintiff made a clear showing that the defendant Creative Bath Products,Inc. (hereinafter the appellant), repeatedly failed to comply with its discovery demands.Further, the appellant's willful and contumacious conduct in failing to meaningfullyrespond to those demands may be reasonably inferred from the record (see H.R. Prince, Inc. v Elite Envtl.Sys., Inc., 107 AD3d 850, 851 [2013]). Accordingly, the Supreme Court did notimprovidently exercise its discretion in granting the plaintiff's motion pursuant to CPLR3126 to preclude the appellant from, inter alia, presenting certain evidence at trial.Mastro, J.P., Angiolillo, Leventhal and Chambers, JJ., concur.