DUNCAN v. HEBB (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan J.), dated September 28, 2006, which granted the plaintiffs' motion to strike her answer, and for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 “Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Green v. Green, 32 A.D.3d 898, 899, 821 N.Y.S.2d 243).   A determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion (see Green v. Green, 32 A.D.3d 898, 821 N.Y.S.2d 243;  Jaffe v. Hubbard, 299 A.D.2d 395, 396, 751 N.Y.S.2d 491).   Striking a defendant's answer is a “drastic remedy,” which is “inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious” (Brandes v. North Shore Univ. Hosp., 22 A.D.3d 778, 778, 803 N.Y.S.2d 204 [internal quotation marks and citations omitted];  see Simpson v. City of New York, 10 A.D.3d 601, 602, 781 N.Y.S.2d 683).   Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, “coupled with inadequate explanations for the failures to comply” (Devito v. J & J Towing, Inc., 17 A.D.3d 624, 625, 794 N.Y.S.2d 74;  see Torres v. Martinez, 250 A.D.2d 759, 759, 673 N.Y.S.2d 182).

 Here, the only explanation offered by the defendant for her repeated failure to comply with the so-ordered preliminary conference stipulation to appear for depositions was that her attorneys were “unable to contact” her.   Accordingly, the court properly inferred that the defendant's conduct was willful and contumacious, and providently exercised its discretion in granting that part of the plaintiffs' motion which was to strike the defendant's answer.

 There is no merit to the defendant's contention that the court erred in granting that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.   The plaintiffs established their prima facie entitlement to summary judgment on the issue of liability by submitting deposition testimony that the plaintiffs' vehicle was stopped at a red light when it was rear-ended by the defendant's car.   In opposition, the defendant offered no evidence to raise a triable issue of fact (see Nieves v. JHH Transport, LLC, 40 A.D.3d 1060, 1060, 836 N.Y.S.2d 697;  Carhuayano v. J & R Hacking, 28 A.D.3d 413, 414, 813 N.Y.S.2d 162;  Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287).