HICKS v. UNITRIN ADVANTAGE INSURANCE COMPANY (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this breach of contract action seeking no-fault benefits under an insurance policy issued by defendant, her automobile insurance carrier, following a motor vehicle accident. Prior to the accident, plaintiff had been employed full time, earning $10 per hour. Defendant partially denied plaintiff's claim for lost wages, and plaintiff now seeks $24,229.20 from defendant, pursuant to no-fault insurance law. After defendant failed to respond to plaintiff's discovery demands, including, inter alia, interrogatories, as well as her good faith demand letter, plaintiff filed a motion to compel responses pursuant to CPLR 3124. After serving incomplete discovery responses, defendant consented to a conditional preclusion order directing it to submit complete responses within 60 days. On the eve of the 60-day deadline, defendant served supplemental discovery responses, which were again incomplete, and then yet again served incomplete supplemental discovery responses after the deadline passed. Plaintiff moved for sanctions pursuant to CPLR 3126, seeking an order striking the answer and entering a default judgment in her favor, and defendant opposed the motion and cross-moved for a protective order pursuant to CPLR 3103. Supreme Court granted plaintiff's motion for sanctions and denied defendant's cross-motion. Defendant now appeals, and we affirm.

“It is well settled that [t]rial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed” (Carpenter v. Browning-Ferris Indus., 307 A.D.2d 713, 715, 763 N.Y.S.2d 871 [4th Dept. 2003] [internal quotation marks omitted]; see Allen v. Wal-Mart Stores, Inc., 121 A.D.3d 1512, 1513, 993 N.Y.S.2d 820 [4th Dept. 2014]). “The nature and degree of a sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the court, and the striking of a pleading is appropriate only upon a clear showing that a party's failure to comply with a discovery demand or order is willful, contumacious, or in bad faith” (Almontaser v. Roswell Park Cancer Inst. Corp., 239 A.D.3d 1432, 1432, 234 N.Y.S.3d 894 [4th Dept. 2025] [internal quotation marks omitted]; see Mosey v. County of Erie, 117 A.D.3d 1381, 1384, 984 N.Y.S.2d 706 [4th Dept. 2014]; see generally Prattico v. City of Rochester, 197 A.D.3d 882, 883-884, 153 N.Y.S.3d 261 [4th Dept. 2021]). “The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders” (Pezzino v. Wedgewood Health Care Ctr., LLC, 175 A.D.3d 840, 841, 106 N.Y.S.3d 535 [4th Dept. 2019] [internal quotation marks omitted]; see generally Zletz v. Wetanson, 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852 [1986]). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (Hann v. Black, 96 A.D.3d 1503, 1504-1505, 946 N.Y.S.2d 722 [4th Dept. 2012] [internal quotation marks omitted]).

Here, plaintiff established on her motion that defendant repeatedly failed to comply with her discovery demands and the conditional preclusion order, and that those failures were willful, contumacious, and in bad faith (see Prattico, 197 A.D.3d at 884, 153 N.Y.S.3d 261; Peterson v. New York Cent. Mut. Fire Ins. Co., 174 A.D.3d 1386, 1388, 106 N.Y.S.3d 451 [4th Dept. 2019]; cf. McGirr v. Zurbrick, 217 A.D.3d 1462, 1465-1466 192 N.Y.S.3d 817 [4th Dept. 2023], lv denied 41 N.Y.3d 902, 2024 WL 674606 [2024]; see generally Zletz, 67 N.Y.2d at 713, 499 N.Y.S.2d 933, 490 N.E.2d 852). Thus, plaintiff met her initial burden on the motion, thereby shifting the burden to defendant to offer a reasonable excuse (see Allen, 121 A.D.3d at 1513, 993 N.Y.S.2d 820). In opposition, defendant did not offer a reasonable excuse but, rather, contended that the discovery demands that it failed to respond to are not relevant. Contrary to defendant's contention, the demands that it failed to respond to sought evidence of potential bias on the part of defendant's independent medical examination physicians and thus are relevant to a proper inquiry (see Dominicci v. Ford, 119 A.D.3d 1360, 1361, 989 N.Y.S.2d 733 [4th Dept. 2014]; see generally Salm v. Moses, 13 N.Y.3d 816, 818, 890 N.Y.S.2d 385, 918 N.E.2d 897 [2009]). We therefore conclude that the court did not abuse its discretion in granting the motion for sanctions pursuant to CPLR 3126.

We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the order.