| Espinal v New York City Health & Hosps. Corp. |
| 2014 NY Slip Op 01430 [115 AD3d 641] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Ana Espinal, Respondent, v New York City Health& Hospitals Corporation, Appellant. |
—[*1] Greenberg & Stein, P.C., New York, N.Y. (Scott A. Steinberg of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County(Flug, J.), entered March 1, 2013, as granted that branch of the plaintiff's motion whichwas pursuant to CPLR 3126 (3) to strike the answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
Actions should be resolved on the merits wherever possible (see Maiorino v City of NewYork, 39 AD3d 601, 601 [2007]). However, the striking of a pleading may bean appropriate sanction where there is a clear showing that the failure to comply withdiscovery demands is willful or contumacious (see Flynn v City of New York, 101 AD3d 803, 804 [2012];Montemurro v MemorialSloan-Kettering Cancer Ctr., 94 AD3d 1066 [2012]; Byam v City of New York, 68AD3d 798, 801 [2009]). The willful or contumacious character of a party's conductcan be inferred from the party's repeated failure to respond to demands or to comply withdiscovery orders (see Silbersteinv Maimonides Med. Ctr., 109 AD3d 812, 814 [2013]; Montemurro vMemorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066).
Here, the willful and contumacious conduct of the defendant can be inferred from itsrepeated failures, over an extended period of time and without an adequate explanation,to comply with the plaintiff's post-deposition demands for the disclosure of certain workorders and the production of certain witnesses, including a witness with knowledge ofthe facts, as well as to comply with several orders mandating such discovery (see Daniels v City of NewYork, 78 AD3d 883, 884 [2010]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655[2010]; Byam v City of New York, 68 AD3d at 801). Accordingly, the SupremeCourt providently exercised its discretion in granting that branch of the plaintiff's motionwhich was pursuant to CPLR 3126 (3) to strike the answer. Rivera, J.P., Dickerson,Cohen, Hinds-Radix and Maltese, JJ., concur.