Maria Estela Cuautle–Rosas, appellant, v. Marylin Carmela Caprio, etc., defendant-respondent; Marylin Caprio, et al., nonparty-respondents. (2026)

Argued—March 30, 2026

DECISION & ORDER

O/

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Debra Silber, J.), dated May 3, 2021, and (2) an order of the same court also dated May 3, 2021.  The first order, insofar as appealed from, denied those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, to dismiss the defendant's affirmative defense alleging comparative negligence, for leave to amend the complaint to add a demand for punitive damages, and to compel nonparties Marylin Caprio and David Caprio to appear for depositions.  The second order, insofar as appealed from, granted that branch of the cross-motion of the defendant and nonparties Marilyn Caprio and David Caprio which was to quash subpoenas served on nonparties Marylin Caprio and David Caprio.

ORDERED that the first order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the defendant's affirmative defense alleging comparative negligence and to compel nonparties Marylin Caprio and David Caprio to appear for depositions, and substituting therefor a provision granting those branches of the motion;  as so modified, the first order is affirmed insofar as appealed from;  and it is further,

ORDERED that the second order is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the cross-motion of the defendant and nonparties Marylin Caprio and David Caprio which was to quash subpoenas served on nonparties Marylin Caprio and David Caprio is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Inasmuch as the defendant has conceded full liability for the accident at issue, the Supreme Court should have granted that branch of the plaintiff's motion which was to dismiss the defendant's affirmative defense alleging comparative negligence.

The determination of whether to strike an answer pursuant to CPLR 3126 is addressed to the sound discretion of the trial court (see Akther v. Jabyali, 245 AD3d 771, 772).  The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see id. at 773;  Singer v. Riskin, 137 AD3d 999, 1001).  Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer.  The plaintiff failed to make a clear showing that the defendant's failure to disclose certain video footage was the product of willful, contumacious, or bad faith conduct (see Akther v. Jabyali, 245 AD3d at 773).

Generally, leave to amend a complaint should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party or is palpably insufficient or patently devoid of merit (see Askari v McDermott, Will & Emery, LLP, 238 AD3d 824, 825;  Cirillo v. Lang, 206 AD3d 611, 612).  Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally or were activated by evil or reprehensible motives (see Rodgers v. Duffy, 95 AD3d 864, 866).  Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend the complaint to add a demand for punitive damages, as the proposed amendment is patently devoid of merit.  With respect to the alleged reckless driving by Thomas Caprio, the plaintiff's allegations fell short of the level of moral culpability necessary to support a demand for punitive damages (see Moskowitz v. Masliansky, 198 AD3d 637, 640–641).

CPLR 3101(a)(1) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.  The terms material and necessary in this statute must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity (see D'Alessandro v. Nassau Health Care Corp., 137 AD3d 1195, 1196).  It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy (see id.;  Smith–Percival v. MTA Bus Co., 232 AD3d 928, 929).  Here, the plaintiff made a showing that conducting the depositions of the nonparties may result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (see Smith–Percival v. MTA Bus Co., 232 AD3d at 929–930;  D'Alessandro v. Nassau Health Care Corp., 137 AD3d at 1196–1197).  Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel the nonparties to appear for depositions and denied that branch of the cross-motion of the defendant and the nonparties which was to quash subpoenas served on the nonparties.

IANNACCI, J.P., BRATHWAITE NELSON, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court