HORNE v. SWIMQUIP INC

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Supreme Court, Appellate Division, Second Department, New York.

Cecilia HORNE, appellant, v. SWIMQUIP, INC., et al., respondents, et al., defendant.

-- January 30, 2007

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, and JOSEPH COVELLO, JJ. Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (James R. Schermerhorn and The Breakstone Law Firm, P.C. [Jay L.T. Breakstone] of counsel), for appellant. Gallagher Gosseen Faller & Crowley, Garden City, N.Y. (David H. Arntsen and James F. Gallagher of counsel), for respondents Weil-McClain Company, Inc., Wylain, Inc., Marley-Wylain Company, a/k/a Marley Company (sued herein also as Swimquip, Inc., Swimquip Manufacturing Corporation, Swimquip Mexico, and Swim EQ Products). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Lesley M. Lai of counsel), for respondents Trataros Construction, Inc., and Basil-Trataros, a Joint Venture. Vincent D. McNamara, East Norwich, N.Y. (Helen M. Benzie of counsel), for respondent Sta-Rite Industries, Inc.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 16, 2005, which (1) denied her motion, inter alia, to vacate a prior judgment of the same court dated May 19, 2005, which, upon an order of the same court dated February 15, 2005, granting the motion of the defendants Weil-McLain Company, Inc., Wylain, Inc., and Marley-Wylain Company, a/k/a Marley Company (sued herein also as Swimquip, Inc., Swimquip Manufacturing Corporation, Swimquip Mexico, and Swim EQ Products), pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them based upon her failure to comply with court-ordered disclosure, upon her default in opposing the motion, dismissed the complaint insofar as asserted against those defendants, and (2) granted the separate cross motions of the defendant Sta-Rite Industries, Inc., and the defendants Trataros Construction, Inc., and Basil-Trataros, a Joint Venture, in effect, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The Supreme Court providently exercised its discretion in denying the plaintiff's motion, inter alia, to vacate the judgment, since she failed to proffer a reasonable excuse for her default in opposing the motion of the defendants Weil-McLain Company, Inc., Wylain, Inc., and Marley-Wylain Company, a/k/a Marley Company (sued herein as Swimquip, Inc., Swimquip Manufacturing Corporation, Swimquip Mexico, and Swim EQ Products) to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with court-ordered disclosure (see CPLR 5015[a][1];  Rodriguez v. Ng, 23 A.D.3d 450, 805 N.Y.S.2d 570;  Cunningham v. Diers, 14 A.D.3d 528, 787 N.Y.S.2d 669;  Tutt v. City of Yonkers, 11 A.D.3d 532, 782 N.Y.S.2d 851).

 Furthermore, the Supreme Court providently exercised its discretion in granting the separate cross motions of the defendant Sta-Rite Industries, Inc., and the defendants Trataros Construction, Inc., and Basil-Trataros, a Joint Venture, in effect, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them for her failure to timely comply with court-ordered disclosure.   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 A.D.3d 339, 772 N.Y.S.2d 713).   Here, the willful and contumacious character of the plaintiff's failure to timely produce a psychiatrist's report regarding her competency to testify at a deposition could be inferred from her failure to comply with two court orders over an approximately five-year period of time, as well as the inadequate explanation offered to excuse her failure to comply (see Powell v. Cipollaro, 34 A.D.3d 551, 824 N.Y.S.2d 409;  Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125;  Frost Line Refrig. v. Frunzi, 18 A.D.3d 701, 795 N.Y.S.2d 741).

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