EMANUEL v. Schindler Elevator Corporation, Third-party Defendant-Appellant-Respondent.

Reset A A Font size: Print

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

Joanne EMANUEL, Plaintiff-Respondent, v. BROADWAY MALL PROPERTIES, INC., Defendant Third-party Plaintiff-Appellant; Schindler Elevator Corporation, Third-party Defendant-Appellant-Respondent.

Decided: April 29, 2002

SANDRA J. FEUERSTEIN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, and BARRY A. COZIER, JJ. Parisi & Smitelli, Rockville Centre, NY, (Robin Mary Heaney of counsel), for defendant third-party plaintiff-appellant. Keller, O'Reilly & Watson, P.C., Woodbury, NY, (Laurence G. McDonnell of counsel), for third-party defendant-appellant-respondent. Ryan & Henderson, P.C., Carle Place, NY, (David M. Schoen and Robert Ryan of counsel), for plaintiff-respondent.

In an action to recover damages for personal injuries, (1) the defendant third-party plaintiff and the third-party defendant separately appeal from an order of the Supreme Court, Nassau County (Alpert, J.), dated June 25, 2001, which granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendant's answer, and (2) the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the same court, dated December 19, 2001, as, in effect, upon renewal, adhered to the prior determination to strike the answer and granted the third-party defendant's motion to dismiss the third-party complaint to the extent of severing the third-party action.

ORDERED that the appeal by the third-party defendant is dismissed as abandoned (see 22 NYCRR 670.8);  and it is further,

ORDERED that the appeal by the defendant third-party plaintiff from the order dated June 25, 2001, is dismissed as that order was superseded by the order dated December 19, 2001, made upon renewal;  and it is further,

ORDERED that the appeal by the defendant third-party plaintiff from that portion of the order dated December 19, 2001, as granted the third-party defendant's motion to dismiss the third-party complaint to the extent of severing the third-party action is dismissed as the defendant third-party plaintiff is not aggrieved thereby (see CPLR 5511);  and it is further,

ORDERED that the order dated December 19, 2001, is affirmed insofar as reviewed;  and it is further,

ORDERED that the plaintiff and the third-party defendant are awarded one bill of costs, payable by the defendant third-party plaintiff.

 Contrary to the contention of the defendant third-party plaintiff, Broadway Mall Properties, Inc. (hereinafter Broadway), upon renewal, the Supreme Court properly adhered to its prior determination to strike its answer.   To invoke “the drastic remedy of striking a pleading, the court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent” (Poulas v. U-Haul Intl., 288 A.D.2d 202, 732 N.Y.S.2d 579;  see Nicoletti v. Ozram Transp., 286 A.D.2d 719, 730 N.Y.S.2d 165;  Polanco v. Duran, 278 A.D.2d 397, 717 N.Y.S.2d 643).   However, where a party disobeys a court order and by its conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court (see Abouzeid v. Cadogan, 291 A.D.2d 423, 737 N.Y.S.2d 634;  Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435).   Here, Broadway's failure to comply with two court orders directing disclosure, and its protracted delay in providing a partial response to the plaintiff's discovery demands, which were not adequately explained by the additional facts submitted on renewal, supported an inference that its failure to provide disclosure was willful and contumacious (see Brandes v. Pirnie-Baker, 288 A.D.2d 413, 733 N.Y.S.2d 905;  Poulas v. U-Haul Intl., supra;  Nicoletti v. Ozram Transp., supra;  Kingsley v. Kantor, 265 A.D.2d 529, 697 N.Y.S.2d 141).   Accordingly, the Supreme Court providently exercised its discretion in striking Broadway's answer.

 In response to the third-party defendant's motion to dismiss the third-party complaint, Broadway argued that the court should sever the third-party action as an alternative to dismissal.   Thus, the appellant is not aggrieved by the portion of the order dated December 19, 2001, which granted its request to sever the third-party action, and its appeal from this portion of the order is dismissed (see CPLR 5511;  Jobco, Inc. v. County of Nassau, 129 A.D.2d 614, 616, 514 N.Y.S.2d 108).

Copied to clipboard