Baumann v. Dee
| Decision Date | 05 March 1984 |
| Citation | 100 A.D.2d 504,472 N.Y.S.2d 707 |
| Parties | John J. BAUMANN, Respondent, v. Roger DEE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mirable, Wortman & Freidel, Huntington (Fred N. Perry, Huntington, of counsel), for appellant.
Before BRACKEN, J.P., and BROWN, NIEHOFF and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the defendant appeals from an order of the Supreme Court, Suffolk County, dated April 7, 1983, which denied his motion to dismiss the complaint.
Order reversed, on the law, with costs, motion granted and complaint dismissed.
While the dismissal of a complaint under CPLR 3126 is a harsh remedy for failure to comply with a court order for discovery, it is nonetheless called for under the circumstances of this case. Plaintiff's failure to comply with the original order to disclose and the two subsequent conditional orders must be characterized as willful or contumacious (cf. Citizens Sav. & Loan Assn. of N.Y. v. New York Prop. Ins. Underwriting Assn., 92 A.D.2d 907, 460 N.Y.S.2d 118). Plaintiff's conduct indicates an utter disregard of any reasonable standards of diligence and at no point was there any showing that his claim was meritorious. Accordingly, defendant is entitled to a dismissal of the complaint.
To continue reading
Request your trial
-
Walk & Smile, Inc. v. 2491 Atlantic Ave. Corp., 1
...v. Sherman, 117 A.D.2d 768, 499 N.Y.S.2d 420; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 697, 498 N.Y.S.2d 435, citing Baumann v. Dee, 100 A.D.2d 504, 472 N.Y.S.2d 707; Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284; Citizens Sav. & Loan Assn. of N.Y. v. New York Prop. Ins. Und......
-
Sawh v. Bridges
...a complaint will generally not be warranted (see, e.g., Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435; Baumann v. Dee, 100 A.D.2d 504, 472 N.Y.S.2d 707). Moreover, imposition of a sanction authorized by CPLR 3126 will be barred if the noncomplying party makes a showing that ......
-
Anteri v. NRS Const. Corp.
...to impose such a harsh sanction absent a showing that the disobedient party's conduct was willful or contumacious (see, Baumann v. Dee, 100 A.D.2d 504, 472 N.Y.S.2d 707; Ferraro v. Koncal Assoc., 97 A.D.2d 429, 467 N.Y.S.2d 284; Citizens Sav. & Loan Assn. of N.Y. v. New York Prop. Ins. Unde......
-
Wydallis v. U.S. Fidelity & Guar. Co.
...e.g., Sawh v. Bridges, 120 A.D.2d 74, 507 N.Y.S.2d 632; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435; Baumann v. Dee, 100 A.D.2d 504, 472 N.Y.S.2d 707). In this regard, unlike his conduct in the Supreme Court, New York County action, the plaintiff did make timely responses ......