Workman v. Town of Southampton

Jan 5, 2010
Versions:69 A.D.3d 619
892 N.Y.2d 481

David Workman, Appellant, v Town of Southampton et al., Defendants, and Gaslight Entertainment Ltd. et al., Respondents. [892 NYS2d 481]—

“The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court” (McArthur v New York City Hous. Auth., 48 AD3d 431, 431 [2008]; see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643 [2005]; Diel v Rosenfeld, 12 AD3d 558, 559 [2004]). The willful and contumacious conduct can be inferred by a party‘s repeated failure to respond to demands or to comply with discovery orders, absent a reasonable excuse (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 [2009]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]; Horne v Swimquip, Inc., 36 AD3d 859 [2007]; Sowerby v Camarda, 20 AD3d 411 [2005]; Rowell v Joyce, 10 AD3d 601 [2004]; Bodine v Ladjevardi, 284 AD2d 351, 352 [2001]). In this case, the willful and contumacious character of the plaintiff‘s conduct can be inferred from his repeated failure to comply with court orders directing him to provide properly-executed authorizations without a reasonable excuse. Although he allegedly orally objected to having to provide the authorizations, he did not make a motion, despite the court‘s direction that he do so. Under these circumstances, the Supreme Court providently exercised its discretion in granting the motions to dismiss the complaint (see Horne v Swimquip, Inc., 36 AD3d 859 [2007]; cf. Redmond v Jamaica Hosp. Med. Ctr., 62 AD3d 854 [2009]; Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583 [2008]).

In light of our determination, the plaintiff‘s remaining contentions are academic. Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.