| Stone v Zinoukhova |
| 2014 NY Slip Op 05532 [119 AD3d 928] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Serrita Stone, Respondent, v ElenaZinoukhova et al., Defendants, and Sanitation Salvage Corp. et al.,Appellants. |
Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn andSalvatore J. DeSantis of counsel), for appellants.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simoneof counsel; Yelena Ambartsumian on the brief), for respondent.
In an action to recover damages for personal injuries, the defendants SanitationSalvage Corp. and Roger Powell appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Schack, J.), dated May 6, 2013, as, in effect,granted those branches of the plaintiff's motion which were to strike the answer insofaras asserted by the defendant Roger Powell and for an inquest against him for failure tocomply with discovery.
Ordered that the appeal by the defendant Sanitation Salvage Corp. is dismissed, asthat defendant is not aggrieved by the order appealed from (see CPLR 5511); andit is further,
Ordered that the order is affirmed insofar as appealed from by the defendant RogerPowell; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendantRoger Powell.
"[A] trial court is given broad discretion to oversee the discovery process"(Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). When a party fails tocomply with a court order and frustrates the disclosure scheme set forth in the CPLR, it iswithin the court's discretion to strike the "pleadings or parts thereof" (CPLR 3126 [3]) asa sanction against such party (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Edwards v Prescott Cab Corp.,110 AD3d 671 [2013]; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79AD3d 798 [2010]). However, public policy favors the resolution of cases on themerits (see Negro v St. CharlesHosp. & Rehabilitation Ctr., 44 AD3d 727, 728 [2007]; 1523 Real Estate, Inc. v East Atl.Props., LLC, 41 AD3d 567, 568 [2007]; A.F.C. Enters., Inc. v New York City School Constr. Auth., 33AD3d 737 [2006]). Accordingly, "the 'drastic remedy' of striking a pleadingpursuant to CPLR 3126 should not be imposed unless the failure to comply withdiscovery demands or orders is clearly willful and contumacious" (Rock City Sound, Inc. v Bashian& Farber, LLP, 83 AD3d 685, 686 [2011], quoting Friedman,Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 800; see Commisso v [*2]Orshan, 85 AD3d 845 [2011]; Morgenstern v Jeffsam Corp.,78 AD3d 913, 914 [2010]; Giano v Ioannou, 78 AD3d 768, 770 [2010]). "Willful andcontumacious conduct may be inferred from a party's repeated failure to comply withcourt-ordered discovery, coupled with inadequate explanations for the failures to comply. . . or a failure to comply with court-ordered discovery over an extendedperiod of time" (Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3dat 686-687 [internal quotation marks and citations omitted]; see Orgel v Stewart Tit. InsCo., 91 AD3d 922 [2012]; Commisso v Orshan, 85 AD3d at 845;Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 800;Morgenstern v Jeffsam Corp., 78 AD3d at 914).
Here, the plaintiff moved to strike the answer insofar as asserted by the defendantRoger Powell (hereinafter the defendant) almost three years after commencing thisaction. At that time, the defendant still had not appeared for a deposition, despitenumerous "so-ordered" extensions entered into between counsel for the parties, and inviolation of a court order directing him to appear for such deposition. In opposition to themotion, defense counsel's investigator stated that he had been unable to locate thedefendant. Under these circumstances, the Supreme Court providently exercised itsdiscretion in granting that branch of the plaintiff's motion which was to strike the answerinsofar as asserted by the defendant and to direct an inquest against him (see Edwardsv Prescott Cab Corp., 110 AD3d at 672; Mason v MTA N.Y. City Tr., 38 AD3d 258 [2007];Montgomery v City of New York, 296 AD2d 386, 386-387 [2002]).
The defendant's remaining contentions do not warrant a different result herein.Dillon, J.P., Hall, Sgroi and Barros, JJ., concur.