| Poveromo v Kelley-Amerit Fleet Servs., Inc. |
| 2015 NY Slip Op 03338 [127 AD3d 1048] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Anthony Poveromo, Jr.,Respondent, v Kelley-Amerit Fleet Services, Inc.,Appellant. |
Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Lisa Mammone Rossi ofcounsel), for appellant.
Molod Spitz & DeSantis, P.C., New York, N.Y. (David B. Owens of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Nassau County (Mahon, J.), entered October 6, 2014, whichgranted the plaintiff's motion pursuant to CPLR 3126 to strike the answer based on itsfailure to comply with court-ordered discovery, to enter judgment in his favor on theissue of liability, and to set the matter down for an inquest on the issue of damages.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion is denied.
A court may strike a pleading as a sanction if a party "refuses to obey an order fordisclosure or wilfully fails to disclose information which the court finds ought to havebeen disclosed" (CPLR 3126 [3]; see Wolf v Flowers, 122 AD3d 728 [2014]; Tos v Jackson Hgts. Care Ctr.,LLC, 91 AD3d 943, 943-944 [2012]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]).However, the drastic remedy of striking an answer is inappropriate absent a clearshowing that the defendant's failure to comply with discovery demands was willful andcontumacious (see Bernardis vTown of Islip, 95 AD3d 1050 [2012]; Polsky v Tuckman, 85 AD3d 750 [2011]; Mazza v Seneca, 72 AD3d754 [2010]).
Here, there was no clear showing that the defendant's conduct was willful andcontumacious. The record demonstrates that the defendant substantially complied withoutstanding discovery requests, and was unable to produce certain records because theywere not in its possession or control (see Lomax v Rochdale Vil., Inc., 76 AD3d 999 [2010]; Argo v Queens Surface Corp.,58 AD3d 656, 656-657 [2009]; Maffai v County of Suffolk, 36 AD3d 765, 766 [2007]).Furthermore, the plaintiff failed to demonstrate that the defendant lost or destroyedcertain maintenance and repair records, or even that those maintenance and repair recordsare lost or destroyed (seeEremina v Scparta, 120 AD3d 616, 618 [2014]). Accordingly, the SupremeCourt improvidently exercised its discretion in granting the plaintiff's motion, inter alia,to strike the answer.
We have not considered the plaintiff's remaining contentions, which were improperlyraised for the first time in his reply papers before the Supreme Court, or pertain to matterdehors the record (see Matter ofValila v Town of Hempstead, 107 AD3d 813, 814 [2013]; Smith v Countyof Suffolk, [*2]61 AD3d 743 [2009]). Chambers,J.P., Hall, Cohen and Miller, JJ., concur.