Abizeid v. Turner Constr. Co.

May 8, 2019
2017-12691
Versions:172 A.D.3d 795
98 N.Y.S.3d 446
2019 NY Slip Op 03556
2019 NY Slip Op 3556

Malapero & Prisco, LLP, New York, NY (George L. Mahoney of counsel), for appellants.

Thomas Pietrantonio, P.C., Port Washington, NY, for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Turner Construction Company, Wolkow-Braker Roofing Corp., Kings County Waterproofing Corp., and Botto Mechanical Corporation appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated September 18, 2017. The order, insofar as appealed from, granted the plaintiff‘s motion pursuant to CPLR 3126 to strike the answer of those defendants.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court‘s discretion” (Crupi v Rashid, 157 AD3d 858, 859). Here, the Supreme Court providently exercised its discretion in granting the plaintiff‘s motion pursuant to CPLR 3126 to strike the appellants’ answer. The appellants’ willful and contumacious conduct may be inferred from their undisputed failure, without an adequate excuse, to comply with an order of the court dated January 10, 2017, as well as from their previous failure to comply with the plaintiff‘s March 10, 2015, discovery demand (see Mears v Long, 149 AD3d 823, 824).

DILLON, J.P., LEVENTHAL, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court