VALLADARES v. MOUTOPOULOS

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Supreme Court, Appellate Division, Second Department, New York.

Flora VALLADARES, respondent, v. Dimitrios MOUTOPOULOS, et al., appellants.

Decided: August 02, 2004

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, and WILLIAM F. MASTRO, JJ. Cullen and Dykman Bleakley Platt LLP, Brooklyn, N.Y. (Joseph Miller and Christopher J. Roess of counsel), for appellants.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated July 29, 2003, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126.

 ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the branch of the motion which was to dismiss the complaint pursuant to CPLR 3126 is granted, and the complaint is dismissed.

 Although “[t]he nature and degree of the penalty to be imposed for the willful failure to obey an order of disclosure is a matter lying within the sound discretion of the court” (D.A.D. Rest. v. North Riv. Ins. Co., 204 A.D.2d 510, 612 N.Y.S.2d 73), the Supreme Court improvidently exercised that discretion when it denied that branch of the motion which was pursuant to CPLR 3126 to dismiss the complaint.   The plaintiff repeatedly, and without explanation, refused to supply the current address of her daughter and son-in-law, who, at the time of the accident, were tenants at the premises where she allegedly slipped and fell.   Considering the close family relationship and the plaintiff's unexcused failure to provide this information in response to multiple requests and in defiance of two court orders, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3126 to dismiss the complaint (see Wiltos v. 1230 Park Owners, 1 A.D.3d 353, 354, 766 N.Y.S.2d 575;  Reed v. Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 A.D.2d 630).

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