ACTION POTENTIAL CHIROPRACTIC PLLC v. UNITED SERVICES AUTOMOBILE ASSOCIATION (2018)

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery. Thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to provide discovery. Defendant argued in support of its motion that it sought discovery from plaintiff in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits. By order entered September 21, 2015, the Civil Court granted defendant's motion and directed plaintiff to provide “verified responses to defendant's discovery demands, including answering interrogatories, producing management agreements, lease agreements, corporate records, federal and state tax returns, and bank records within 60 days of this order.”

When plaintiff's time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the September 21, 2015 order. On March 22, 2016, plaintiff served its opposition to the motion along with its responses to defendant's discovery demands, but plaintiff did not produce the documents which the court had previously ordered it to produce. Plaintiff appeals from an order of the Civil Court, entered May 26, 2016, which granted defendant's motion.

The determination of whether to strike a pleading for failure to comply with court-ordered discovery lies within the sound discretion of the motion court (see CPLR 3126; Orgel v. Stewart Tit. Ins. Co., 91 AD3d 922 [2012]; Giano v. Ioannou, 78 AD3d 768 [2010]; Fishbane v. Chelsea Hall, LLC, 65 AD3d 1079 [2009]; Mir v. Saad, 54 AD3d 914 [2008]; see also Kihl v Pfeffer, 94 NY2d 118 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party's conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 AD3d 685 [2011] ). In the case at bar, that plaintiff's conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply (see Tos v. Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v. Joyce, 10 AD3d 601 [2004]; Renelique v. Lancer Ins. Co., 53 Misc 3d 145[A], 2016 NY Slip Op 51596[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ).

Accordingly, the order entered May 26, 2016 is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.