Dacey v. Horror Cafe, Inc.

Apr 8, 2002
Versions:293 A.D.2d 511
739 N.Y.S.2d 828
2002 N.Y. App. Div. LEXIS 3496

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 6, 2000, which denied their motion to vacate an order of the same court, dated May 11, 2000, sua sponte dismissing the action for failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” is a matter within the discretion of the Supreme Court (CPLR 3126; see Zletz v Wetanson, 67 NY2d 711; DeJulio v Wulf, 260 AD2d 425; Kubacka v Town of N. Hempstead, 240 AD2d 374). The willful and contumacious conduct of the plaintiff Michael Dacey may be inferred from his repeated failure to comply with the court-ordered discovery schedule, and his failure to appear at scheduled independent medical examinations without adequate excuse (see Nowak v Veira, 289 AD2d 383; Polanco v Duran, 278 AD2d 397, 398; Frias v Fortini, 240 AD2d 467). Accordingly, the Supreme Court providently exercised its discretion in dismissing the complaint, and in denying the plaintiffs’ motion to vacate the prior order (see CPLR 2221). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.