Powell v. Cipollaro

Nov 14, 2006
Versions:

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated August 8, 2005, which granted the respective motions of the defendant Anthony Cipollaro and the defendants Gwenette Lensey and Gertrude Howard pursuant to CPLR 3126 to strike the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendants’ respective motions to strike the complaint. Although striking a pleading pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party‘s conduct is shown to be willful and contumacious (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]). The inference that the plaintiff‘s conduct was willful and contumacious may be drawn from his repeated failure to respond adequately to discovery demands and to court directives to comply with those demands, and from the absence of any adequate explanations for his failure to comply (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Schwartz v Suebsanguan, 15 AD3d 565 [2005]; Rowell v Joyce, 10 AD3d 601 [2004]). Schmidt, J.P., Ritter, Mastro, Fisher and Dillon, JJ., concur.