Vanalst v. City of New York

Feb 18, 2003
Versions:302 A.D.2d 515
755 N.Y.S.2d 260
2003 N.Y. App. Div. LEXIS 1614

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated November 19, 2001, which granted that branch of the motion of the defendant Brooklyn Union Gas Company which was to dismiss the complaint for the plaintiffs failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

When a party’s failure to comply with disclosure orders is willful, deliberate, and contumacious, it is within the trial court’s discretion to dismiss that party’s pleading (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Abouzeid v Cadogan, 291 AD2d 423 [2002]; Lones v Lampeas, 270 AD2d 317 [2000]). Here, the plaintiff’s flagrant failure to comply with discovery orders of this Court (see Vanalst v City of New York, 276 AD2d 789 [2000]) and the Supreme Court over an extended period of time, without sufficient excuse, was willful and contumacious (see Castrignano v Flynn, 255 AD2d 352 [1998]; Kubacka v Town of N. Hempstead, 240 AD2d 374 [1997]; Frias v Fortini, 240 AD2d 467 [1997]). Accordingly, the Supreme Court providently exercised its discretion in dismissing the complaint. Florio, J.P., S. Miller, Friedmann, Townes and Mastro, JJ., concur.