Leone v. Esposito

Nov 15, 2002
Versions:299 A.D.2d 930
749 N.Y.S.2d 924

Appeals from an order of Supreme Court, Monroe County (Alonzo, J.), entered July 18, 2001, which dismissed the complaints pursuant to CPLR 3126 (3).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to plaintiffs’ contention, Supreme Court providently exercised its discretion in granting the motion of defendant pursuant to CPLR 3126 (3) to dismiss the complaints against him for plaintiffs’ failure to comply with the court’s discovery orders (see Cavaliere v Episcopal Health Servs., 287 AD2d 532, 533; Wilson v West Hempstead Gens. Football Club, 286 AD2d 438; Kingsley v Kantor, 265 AD2d 529, 530). “[W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the [court]’s discretion to dismiss the complaint” (Kihl v Pfeffer, 94 NY2d 118, 122; see Zletz v Wetanson, 67 NY2d 711, 713; Pauli v First UNUM Life Ins. Co., 267 AD2d 970, 971). That the conduct of plaintiffs was willful and contumacious could be inferred from their failure to comply fully with the discovery orders or offer a reasonable excuse therefor (see Wilson, 286 AD2d 438; Kingsley, 265 AD2d at 530; Garcia v Kraniotakis, 232 AD2d 369, 370). Present— Hayes, J.P., Hurlbutt, Kehoe, Burns and Lawton, JJ.