Tashia Hurst, respondent, v. William F. Shuker, et al., appellants. (2026)

Argued—December 9, 2025

DECISION & ORDER

Q/

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.) entered March 7, 2022.  The order, insofar as appealed from, denied those branches of the defendants' motion which were, in effect, pursuant to CPLR 3126 to strike the complaint or, in the alternative, in effect, pursuant to CPLR 3124 to compel the plaintiff to provide certain discovery.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendants' motion which was to direct the plaintiff to appear for a further deposition concerning only a prior accident that occurred in 2017 and related treatment, and substituting therefor a provision granting that branch of the defendants' motion, (2) by deleting the provision thereof denying that branch of the defendants' motion which was to direct the plaintiff to provide a supplemental bill of particulars as to paragraphs 10, 11, and 17 of the plaintiff's bill of particulars, and substituting therefor a provision granting that branch of the defendants' motion, and (3) by deleting the provision thereof denying that branch of the defendants' motion which was to compel the plaintiff to comply with item no. 2 of the discovery demand dated February 11, 2021, and substituting therefor a provision granting that branch of the defendants' motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on September 24, 2018, in a motor vehicle accident with a truck owned and operated by the defendants.  At her examination before trial in January 2020, the plaintiff testified that she had been involved in a prior accident “a few years ago.”  The defendants thereafter demanded, inter alia, authorizations for records arising from the prior accident that occurred in 2017.  As relevant here, after several attempts to resolve discovery issues through correspondence, in September 2021, the defendants moved, among other things, in effect, pursuant to CPLR 3126 to strike the complaint or, in the alternative, in effect, pursuant to CPLR 3124 to compel the plaintiff to comply with outstanding discovery demands for, inter alia, a further deposition of the plaintiff and a supplemental bill of particulars.  In an order entered March 7, 2022, the Supreme Court, among other things, denied those branches of the defendants' motion.  The defendants appeal.

Pursuant to CPLR 3101(a), “ ‘[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action’ ” (Gentile v. Ogden, 208 AD3d 855, 856, quoting CPLR 3101[a];  see Abedin v. Osorio, 188 AD3d 764, 766).  “The Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes” (Lopez v. Bell Sports, Inc., 175 AD3d 1524, 1525;  see Ferjuste v. 437 BMW, LLC, 219 AD3d 1308, 1308–1309).  “However, the Appellate Division may substitute its own discretion for that of the trial court in such matters” (Lopez v. Maggies Paratransit Corp., 210 AD3d 1066, 1067;  see Zupnick v. City of New Rochelle, 173 AD3d 947, 949).  Since public policy strongly favors the resolution of actions on the merits, the drastic remedy of dismissal of a complaint is not warranted unless there is a clear showing that the plaintiff's failure to comply with discovery demands or orders was willful and contumacious (see CPLR 3126;  Lopez v. Maggies Paratransit Corp., 210 AD3d at 1067).  “The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse” (Reyes v U.S. Sec. Assoc.  Aviation Servs., Inc., 230 AD3d 708, 709 [internal quotation marks omitted];  see Plenty v. New York City Tr. Auth., 229 AD3d 571, 572).  Here, under the totality of the circumstances, the defendants failed to make a clear showing that the plaintiff willfully and contumaciously refused to comply with discovery demands.  Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was, in effect, pursuant to CPLR 3126 to strike the complaint (see Plenty v. New York City Tr. Auth., 229 AD3d at 573;  Lopez v. Bell Sports, Inc., 175 AD3d at 1525–1526).

“Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” (Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757, 758;  see Bennett v. State Farm Fire & Cas. Co., 189 AD3d 749, 750).  Here, the discovery demands as to social media information were palpably improper in that they were overbroad and burdensome (see Forman v. Henkin, 30 NY3d 656, 664–665;  see also Doyle v. Temco Serv. Indus., Inc., 172 AD3d 554, 555).  Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was to provide authorizations for records from the plaintiff's social media accounts (see Kregg v. Maldonado, 98 AD3d 1289, 1290).

However, in light of the plaintiff's delay in disclosing information about prior injuries that bear on the controversy and would assist in preparation for trial, the Supreme Court should have granted that branch of the defendants' motion which was to compel the plaintiff to appear for a further deposition concerning only a prior accident that occurred in 2017 and related treatment (see Lewis v. City of New York, 206 AD3d 896, 898).

The Supreme Court also should have granted that branch of the defendants' motion which was to compel the plaintiff to provide a supplemental bill of particulars as to paragraphs 10, 11, and 17 of the plaintiff's bill of particulars (see Lopez v. Maggies Paratransit Corp., 210 AD3d at 1067;  Gentile v. Ogden, 208 AD3d at 856;  Gelin v. New York City Tr. Auth., 189 AD3d 789, 793).

Furthermore, since the plaintiff testified that she had undergone therapy at Englinton Medical, P.C., after having surgery, the medical records regarding those therapies are material and necessary to the defense (see Orlando v. Richmond Precast, Inc., 53 AD3d 534, 535;  Diamond v Ross Orthopedic Group, P.C., 41 AD3d 768, 768).  Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was to compel the plaintiff to comply with item no. 2 of the defendants' discovery demand dated February 11, 2021.

The parties' remaining contentions are without merit.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court