CARECCIA v. METROPOLITAN SUBURBAN BUS AUTHORITY MTA

Reset A A Font size: Print

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

Mary CARECCIA, respondent, v. METROPOLITAN SUBURBAN BUS AUTHORITY, d/b/a MTA Long Island Bus, et al., appellants, et al., defendant.

Decided: May 31, 2005

ANITA R. FLORIO, J.P., SONDRA MILLER, FRED T. SANTUCCI, and ROBERT A. SPOLZINO, JJ. Morris Duffy Alonso & Faley, LLP, New York, N.Y. (Anna J. Ervolina of counsel), for appellants. Frankfort & Koltun, Deer Park, N.Y. (Robert D. Frankfort of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Metropolitan Suburban Bus Authority, d/b/a MTA Long Island Bus, and the County of Nassau appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), entered April 30, 2004, as granted the plaintiff's motion to strike their answer and, in effect, denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 An action should be determined on the merits whenever possible (see Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 597 N.Y.S.2d 457).   However, the motion court, in its discretion, may invoke the drastic remedy of striking an answer if it determines that the defendant's failure to comply with discovery demands is willful, contumacious, or in bad faith (see id. ).   Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to strike the answer of the defendants Metropolitan Suburban Bus Authority, d/b/a MTA Long Island Bus, and County of Nassau (hereinafter the appellants).   The appellants' willful and contumacious conduct can be inferred from their repeated failure to comply with the plaintiff's discovery demands and inadequate explanations offered to excuse the failures to comply (see Beneficial Mtge. Corp. v. Lawrence, 5 A.D.3d 339, 772 N.Y.S.2d 713;  Montgomery v. City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464;  Herrera v. City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647;  cf. 181 S. Franklin Assoc., Inc. v. Y & R Assoc., 6 A.D.3d 594, 774 N.Y.S.2d 811).

In light of this determination, we need not reach the appellants' remaining contentions.

Copied to clipboard