GETTY v. Mark J. Knoerl, Defendant-Respondent. (2007)

Plaintiff commenced this action seeking damages for injuries she sustained in a multi-vehicle accident on January 9, 2004.   After plaintiff failed to provide authorizations requested by Mark J. Knoerl (defendant) to enable him to obtain plaintiff's employment records, defendant cross-moved for, inter alia, an order compelling plaintiff to provide employment authorizations “for the three years prior to this incident․” Supreme Court granted the cross motion in part, ordering plaintiff, inter alia, to provide defendant with “the requested authorizations” (emphasis added).   Plaintiff, however, provided defendant with an authorization permitting him to obtain employment records “FROM 1/9/2003 & SUBSEQUENT,” and plaintiff did not respond to defendant's two additional requests for the court-ordered authorizations.

We conclude that the court did not abuse its discretion in granting defendant's subsequent preclusion motion, ordering that plaintiff “is precluded from offering evidence at trial with respect to claims of past or future lost wages[,] ․ past or future disability from employment activities and any matters related to plaintiff's employment․” Contrary to plaintiff's contention, the prior order directing plaintiff to provide the requested authorizations, i.e., for the three years prior to the incident, is clear and unambiguous.   The incident occurred on January 9, 2004 and, in providing authorizations commencing from January 9, 2003, plaintiff failed to comply with the prior order.

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” (Andruszewski v. Cantello, 247 A.D.2d 876, 876, 668 N.Y.S.2d 297;  see Xerox Corp. v. Town of Webster, 206 A.D.2d 935, 616 N.Y.S.2d 119).   Where a defendant establishes that a plaintiff's failure to comply with a discovery order is willful and contumacious, an order of preclusion is appropriate (see Campbell v. Obear, 26 A.D.3d 877, 809 N.Y.S.2d 371;  see also Moog v. City of New York, 30 A.D.3d 490, 491, 820 N.Y.S.2d 593).   Here, the willful and contumacious nature of the conduct of plaintiff may be inferred from her failure to comply with the court's order and her inadequate excuses for that failure (see Moog, 30 A.D.3d at 491, 820 N.Y.S.2d 593;  Leone v. Esposito, 299 A.D.2d 930, 931, 749 N.Y.S.2d 924, lv. dismissed 99 N.Y.2d 611, 757 N.Y.S.2d 821, 787 N.E.2d 1167;  see also Dolny v. Dolny, 32 A.D.3d 818, 820 N.Y.S.2d 520).

Contrary to plaintiff's further contention, “the court properly ‘impose[d] a sanction commensurate with the particular disobedience [the sanction was] designed to punish, and [went] no further’ ” (Matter of Arcidino v. McCarthy, 16 A.D.3d 1132, 1133, 792 N.Y.S.2d 271, quoting Matter of Landrigen v. Landrigen, 173 A.D.2d 1011, 1012, 569 N.Y.S.2d 843).

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

MEMORANDUM: