PENAFIEL v. PURETZ (2002)

In an action to recover damages for personal injuries, etc., the defendants Leib Puretz and Williamsboro Realty Corp., appeal from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated November 16, 2001, as denied their motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

 “While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of the Supreme Court's discretion (see Espinal v. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610;  Soto v. City of Long Beach, 197 A.D.2d 615, 616, 602 N.Y.S.2d 691), striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Birch Hill Farm v. Reed, 272 A.D.2d 282, 707 N.Y.S.2d 188).

 Here, the plaintiff's flagrant failure to comply with at least three discovery orders of the court over an extended period of time, without sufficient excuse, was willful and contumacious (see Castrignano v. Flynn, 255 A.D.2d 352, 679 N.Y.S.2d 674;  Kubacka v. Town of N. Hempstead, 240 A.D.2d 374, 657 N.Y.S.2d 770;  Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435).   The Supreme Court therefore improvidently exercised its discretion in denying the appellants' motion to dismiss the complaint insofar as asserted against them (see Montgomery v. City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464;  Ali v. Lazerovitch, 281 A.D.2d 502, 721 N.Y.S.2d 797;  Birch Hill Farm v Reed, supra;  Hudson v. City of New York, 267 A.D.2d 351, 700 N.Y.S.2d 67;  Espinal v. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610;  Herrera v. City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647).

The plaintiff's remaining contentions are without merit.