Xiao Yang Chen, respondent, v. Ian Ira Fischer, appellant.
Argued-April 15, 2010
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.), dated January 27, 2009, as denied that branch of his motion which was to dismiss, due to spoliation of evidence and pursuant to CPLR 3126, the causes of action alleging injuries to the plaintiff's left ear.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendant's motion which was to dismiss the plaintiff's causes of action alleging injuries to her left ear is granted.
“Although actions should be resolved on the merits whenever possible, the court may, among other things, issue an order ‘striking out pleadings or parts thereof’ (CPLR 3126 ) when a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed’ (CPLR 3126)” (Ingoglia v Barnes & Noble College Booksellers, Inc., 48 AD3d 636, 636-637 [citations omitted]; see DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41). Furthermore, “when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint” (Kihl v. Pfeffer, 94 N.Y.2d 118, 122). Striking a pleading in its entirety may be warranted where the offending party's conduct was wilful or contumacious (see Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 841)
RIVERA, J.P., FISHER, FLORIO and AUSTIN, JJ., concur.
James Edward Pelzer
Clerk of the Court