ESPINAL v. CITY OF NEW YORK

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

Norberto ESPINAL, appellant, v. CITY OF NEW YORK, et al., respondents.

Decided: September 27, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Bader & Yakaitis, New York, N.Y. (John J. Nonnenmacher of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Dona B. Morris of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of two orders of the Supreme Court, Kings County (Hutcherson, J.), dated May 15, 1998, and May 20, 1998, respectively, as denied his motion to strike the defendants' answer pursuant to CPLR 3126(3).

ORDERED that the orders are reversed insofar as appealed from, as a matter of discretion, with costs, the motion is granted, the answer is stricken, and the matter is remitted to the Supreme Court, Kings County, for an inquest as to damages.

 Although actions should be resolved on the merits wherever possible (see, Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 580, 597 N.Y.S.2d 457), a court may, inter alia, strike the “pleadings or parts thereof” as a sanction against a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed [upon notice]” (CPLR 3126[3] ).   While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court (see, Soto v. City of Long Beach, 197 A.D.2d 615, 616, 602 N.Y.S.2d 691;  Spira v. Antoine, 191 A.D.2d 219, 596 N.Y.S.2d 1), “striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289;  see, Lestingi v. City of New York, 209 A.D.2d 384, 618 N.Y.S.2d 731).

 In the instant case, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer (see, Herrera v. City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647).   The defendants' willful and contumacious conduct can be inferred from their repeated failures to comply with orders directing disclosure and the inadequate excuses offered to excuse their failure to comply (see, Porreco v. Selway, 225 A.D.2d 752, 640 N.Y.S.2d 171).   Thus, the plaintiff satisfied his initial burden of proving willfulness, shifting the burden to the defendants to offer a reasonable excuse for their failure to comply (see, Furniture Fantasy v. Cerrone, 154 A.D.2d 506, 546 N.Y.S.2d 133).   At no time did the defendants offer a reasonable excuse for their repeated failures to comply with the plaintiff's outstanding discovery demands and the orders directing disclosure.   Accordingly, the plaintiff's motion to strike the answer is granted and the matter is remitted to Supreme Court, Kings County, for an inquest as to damages.

MEMORANDUM BY THE COURT.

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