GOKEY v. DECICCO (2005)

Appeal from an order of the Supreme Court (Kavanagh, J.), entered June 2, 2005 in Ulster County, which granted defendants' motion to strike the complaint.

Plaintiff commenced this action seeking damages for personal injuries he allegedly sustained when the vehicle he was riding in was struck from behind by a vehicle owned and/or operated by defendants.   Based on plaintiff's subsequent failure to attend two scheduled independent medical examinations (hereinafter IME) (see CPLR 3121), defendants moved to strike the complaint or, in the alternative, to compel plaintiff to appear for an IME (see CPLR 3126[3] ).   Finding that plaintiff's failure to attend the scheduled IMEs was willful and “without any valid reason,” Supreme Court granted defendants' motion and dismissed the complaint.

 Although it is well settled that “[t]he nature and degree of any penalty imposed on a motion pursuant to CPLR 3126 is a discretionary matter” (Nabozny v. Cappelletti, 267 A.D.2d 623, 625, 699 N.Y.S.2d 589 [1999];  see Zletz v. Wetanson, 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490 N.E.2d 852 [1986] ), such a determination must be balanced against the “ ‘general policy favoring the resolution of actions on their merits' ” (Osterhoudt v. Wal-Mart Stores, 273 A.D.2d 673, 675, 709 N.Y.S.2d 685 [2000], quoting Mrs. London's Bake Shop v. City of Saratoga Springs, 144 A.D.2d 749, 750, 534 N.Y.S.2d 745 [1988];  accord Kinge v. State of New York, 302 A.D.2d 667, 669, 754 N.Y.S.2d 717 [2003] ).   Indeed, the ultimate sanction of dismissal of a pleading should be reserved for those cases in which it is clearly shown that the failure to comply with discovery demands is the result of “ ‘a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation’ ” (Altu v. Clark, 20 A.D.3d 749, 751, 798 N.Y.S.2d 775 [2005], quoting Forman v. Jamesway Corp., 175 A.D.2d 514, 515-516, 572 N.Y.S.2d 782 [1991];  see Matter of Beauregard v. Millwood-Beauregard, 207 A.D.2d 633, 633-634, 615 N.Y.S.2d 938 [1994];  see e.g. Appler v. Riverview Obstetrics & Gynecology, 9 A.D.3d 577, 578-579, 780 N.Y.S.2d 188 [2004];  Osterhoudt v. Wal-Mart Stores, supra at 673-674, 709 N.Y.S.2d 685;  Lawrence H. Morse, Inc. v. Anson, 251 A.D.2d 722, 723, 673 N.Y.S.2d 796 [1998] ).

 In our view, although we appreciate and share Supreme Court's concern over the failure of a party to comply with discovery, outright dismissal of plaintiff's complaint was not warranted under the circumstances herein.   While it is true that plaintiff failed to attend two scheduled IMEs, in light of plaintiff's proffered excuses and his expressed willingness to attend an IME at defendants' convenience, as well as his apparent compliance with other aspects of the discovery process (compare Osterhoudt v. Wal-Mart Stores, supra at 673-674, 709 N.Y.S.2d 685) and the fact that defendants have not averred that they were unduly prejudiced by plaintiff's failure to attend the IMEs (compare Blake v. Chawla, 299 A.D.2d 437, 440-441, 750 N.Y.S.2d 121 [2002] ), we cannot conclude that plaintiff's conduct has risen to a level of obstinate disobedience deserving of the ultimate penalty.   Rather, we find that a conditional order of dismissal is justified upon these facts.   Accordingly, defendants' motion is denied provided that plaintiff appears for an IME within 45 days after service of a copy of this order with notice of entry.   In addition, inasmuch as defendants incurred costs due to plaintiff's conduct, we conclude that imposition of a monetary penalty in the amount of $750 is appropriate (see Altu v. Clark, supra at 751, 798 N.Y.S.2d 775;  Flynn v. Debonis, 246 A.D.2d 852, 853, 668 N.Y.S.2d 274 [1999];  see also Hilley v. Sanabria, 12 A.D.3d 1188, 1189, 784 N.Y.S.2d 432 [2004];  Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3126:10, C3126:11).

ORDERED that the order is reversed, on the facts, without costs, and motion denied upon the conditions that (1) plaintiff appear for an independent medical examination before an examining physician of defendants' choosing within 45 days after service of a copy of this order with notice of entry, and (2) plaintiff pay defendants the amount of $750 within 20 days after service of a copy of this order with notice of entry.

CARDONA, P.J.

MUGGLIN, ROSE and KANE, JJ., concur.