Michael Winchcombe, appellant, v. Ridgeline Construction Corp., et al., respondents, et al., defendant. (2026)

Argued—January 22, 2026

DECISION & ORDER

W/

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated December 3, 2024, and (2) an order of the same court dated January 22, 2025.  The order dated December 3, 2024, denied the plaintiff's motion to vacate an order of the same court dated September 25, 2024, which, sua sponte, in effect, directed dismissal of the complaint pursuant to CPLR 3126.  The order dated January 22, 2025, denied the plaintiff's motion for leave to reargue and renew his prior motion to vacate the order dated September 25, 2024.

ORDERED that the order dated December 3, 2024, is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the plaintiff's motion to vacate the order dated September 25, 2024, is granted;  and it is further,

ORDERED that the appeal from so much of the order dated January 22, 2025, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the appeal from so much of the order dated January 22, 2025, as denied that branch of the plaintiff's motion which was for leave to renew his prior motion to vacate the order dated September 25, 2024, is dismissed as academic, without costs or disbursements, in light of our determination of the appeal from the order dated December 3, 2024.

The plaintiff subsequently moved to vacate the dismissal order.  The defendants did not oppose the plaintiff's motion.  In an order dated December 3, 2024, the Supreme Court denied the plaintiff's unopposed motion.  The plaintiff then moved for leave to renew and reargue his prior motion to vacate the dismissal order.  In an order dated January 22, 2025, the court denied the plaintiff's motion.  The plaintiff appeals from both orders.

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading ․, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 AD3d 961, 963 [internal quotation marks omitted];  see CPLR 3126[3] ).  “[T]he drastic remedy of striking a pleading ․ pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 AD3d at 963 [internal quotation marks omitted];  see U.S. Bank N.A. v. Hadar, 206 AD3d 688, 690).  Further, due process generally requires “notice and an opportunity to be heard before a court may impose such drastic remedies for discovery noncompliance” (Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 AD3d at 963;  see Paradiso v. St. John's Episcopal Hosp., 134 AD3d 1002, 1003;  see generally Wells Fargo Bank, N.A. v St. Louis, 229 AD3d 116, 117, 122).

Here, the plaintiff was not given adequate notice and opportunity to be heard prior to imposition of the drastic sanction of dismissal of the complaint, “including on facts relevant to whether the plaintiff's noncompliance was willful and contumacious” (Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 AD3d at 963).  The defendants did not move for sanctions pursuant to CPLR 3126 due to the plaintiff's failure to appear for his deposition, nor did the Supreme Court make its own motion or include language in any prior order warning that noncompliance would result in sanctions (see id.;  see also Paradiso v. St. John's Episcopal Hosp., 134 AD3d 1002, 1003;  Mitskevitch v. City of New York, 78 AD3d 1137, 1138).

Moreover, the record did not clearly show that the plaintiff willfully and contumaciously failed to adequately respond to discovery demands or to comply with court orders for disclosure (see Ambroise v. Palmana Realty Corp., 197 AD3d 1226;  S.R. Garden City, LLC v. Magnacare, LLC, 114 AD3d 925, 926–927).  The plaintiff provided a reasonable excuse for his failure to meet the final deadline imposed for his deposition (see S.R. Garden City, LLC v. Magnacare, LLC, 114 AD3d at 927).  The plaintiff's counsel wrote to the Supreme Court the same day that the court directed dismissal of the complaint, explaining that the plaintiff had been unable to appear at his deposition the previous day due to an appearance in a criminal proceeding and that the plaintiff's counsel had contacted defense counsel in advance to advise them of the conflict.  Further, the record was not otherwise sufficient to demonstrate a willful and contumacious failure to provide discovery or to comply with discovery directives that would justify the extreme sanction of dismissal (see Jurlina v. Town of Brookhaven, 215 AD3d 936, 938;  Cooper v. Mt. Sinai Hosp., 208 AD3d 453, 455).

Under all of these circumstances, and given the public policy of resolving cases on the merits, the Supreme Court should have granted the plaintiff's motion to vacate the dismissal order, which, sua sponte, in effect, directed dismissal of the complaint pursuant to CPLR 3126 (see S.R. Garden City, LLC v. Magnacare, LLC, 114 AD3d at 927;  see also Korsinsky & Klein, LLP v FHS Consultants, LLC, 214 AD3d at 963–964).

The respondents' contentions regarding the order dated December 3, 2024, are not properly before this Court.  The parties' remaining contentions regarding the order dated January 22, 2025, need not be reached in light of our determination.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court