| Wolf v Flowers |
| 2014 NY Slip Op 07655 [122 AD3d 728] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Michael Wolf et al., Appellants, v Frank J.Flowers et al., Respondents. |
Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants.
Craig P. Curcio, Middletown, N.Y. (Ryan Bannon of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Dutchess County(Rosa, J.), dated April 8, 2014, as granted that branch of the defendants' motion whichwas pursuant to CPLR 3126 to dismiss the complaint for their failure to comply withcourt-ordered discovery.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in granting that branch of thedefendants' motion which was pursuant to CPLR 3126 to dismiss the complaint for theplaintiffs' failure to comply with court-ordered discovery. The nature and degree of thesanction to be imposed on a motion pursuant to CPLR 3126 is within the broaddiscretion of the motion court (see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812,814 [2012]; Quinones v LongIs. Jewish Med. Ctr., 90 AD3d 632, 632 [2011]; Novick v DeRosa, 51 AD3d885, 885 [2008]). A court may strike a pleading as a sanction if a party "refuses toobey an order for disclosure or wilfully fails to disclose information which the courtfinds ought to have been disclosed" (CPLR 3126 [3]; see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943,943-944 [2012]; Moray v Cityof Yonkers, 76 AD3d 618, 619 [2010]; Mazza v Seneca, 72 AD3d 754, 754 [2010]). The willfuland contumacious character of a party's conduct can be inferred from either the repeatedfailure to respond to demands or comply with discovery orders, without demonstrating areasonable excuse for these failures, or the failure to comply with court-ordereddiscovery over an extended period of time (see Matone v Sycamore Realty Corp., 87 AD3d 1113, 1114[2011]; Friedman, Harfenist,Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2010]; Prappas v Papadatos, 38 AD3d871, 872 [2007]). Here, the defendants demonstrated that the plaintiffs failed tocomply with court-ordered discovery over an extended period of time. Moreover, thewillful and contumacious character of the plaintiffs' conduct also may reasonably beinferred from their failure to meaningfully and substantially comply with a discoveryorder dated January 8, 2014, and the absence of a reasonable excuse for the failure toadequately comply (seeMikhailov v Katan, 116 AD3d 744, 745 [2014]; Aha Sales, Inc. v Creative BathProds., Inc., 110 AD3d 1019, 1020 [2013]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850,851 [2013]).
The plaintiffs' remaining contentions are not properly before this Court. Dillon, J.P.,Dickerson, Roman and Sgroi, JJ., concur.