Brady v. County of Nassau
| Decision Date | 16 December 1996 |
| Citation | 234 A.D.2d 408,650 N.Y.S.2d 802 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Patrick BRADY, et al., Appellants, v. COUNTY OF NASSAU, et al., Defendants, Lisaann Stationary, Inc., d/b/a V & O Enterprises, Ltd., et al., Respondents. |
Ginsberg, Katsorhis & Fedrizzi, Flushing (Kerry Katsorhis, of counsel), for appellants.
Kelly, Rode & Kelly, LLP, Mineola (Claudio DeBellis, of counsel), for respondent Lisaann Stationary, Inc., d/b/a V & O Enterprises, Ltd.
Ahmuty, Demers & McManus, Albertson (Henri A. Demers, of counsel), for respondent 28-25 South, Inc.
Before RITTER, J.P., and PIZZUTO, SANTUCCI and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for false arrest, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brucia, J.), entered November 15, 1995, which (1) granted the motion of the defendant 28-25 South, Inc., pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it, and (2) granted the motion of the defendant Lisaann Stationary, Inc., d/b/a V & O Enterprises, Ltd. for an order of preclusion against the plaintiffs.
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
Where a plaintiff's conduct is found to be willful and contumacious, it is within the court's discretion to grant either dismissal of the complaint or an order of preclusion (CPLR 3126; see, Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852; Rivers v. Embassy Club, 207 A.D.2d 876, 616 N.Y.S.2d 988). Moreover, the absence of any excuse for the delay in responding to discovery demands, and the delaying party's failure to object to the demands, supports an inference that the failure to comply was willful (see, Mills v. Ducille, 170 A.D.2d 657, 567 N.Y.S.2d 79; Brandi v. Chan, 151 A.D.2d 853, 542 N.Y.S.2d 827; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435).
The record provides ample reason to conclude that the plaintiffs exhibited willful and contumacious conduct in failing to timely comply with both the repeated demands for disclosure and with the court-ordered discovery schedule. The plaintiffs did not offer any reasonable excuse for their noncompliance (see, Rosner v. Blue Channel Corp., 131 A.D.2d 654, 655, 516 N.Y.S.2d 736). Under these circumstances, the Supreme Court did not improvidently exercise its discretion in granting the respective motions to...
To continue reading
Request your trial
-
Mendoza v. Exclusive Concepts, Inc., 2008 NY Slip Op 32568(U) (N.Y. Sup. Ct. 9/8/2008)
...v. Chan, 151 A.D.2d 853, 542 N.Y.S.2d 827; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435) Brady v. County of Nassau, 234 A.D.2d 408, 650 N.Y.S.2d 802 [2nd Dept., 1996]. However, the Appellate Division has also ruled in an analogous matter, involving a deported defendant witn......
-
Polanco v. Duran
...depositions without an adequate excuse (see, DeJulio v. Wulf, 260 A.D.2d 425; Castrignano v. Flynn, 255 A.D.2d 352; Brady v. County of Nassau, 234 A.D.2d 408). Since the defendants' motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable ......
-
Bellevue v. Gustav
...was willful and contumacious (see Watson v. 518 Pa. Hous. Dev. Fund Corp., 160 A.D.3d 907, 910, 76 N.Y.S.3d 66 ; Brady v. County of Nassau, 234 A.D.2d 408, 650 N.Y.S.2d 802 ). The plaintiffs' failures, over a period of 13 months and despite three court orders, to appear for depositions, cou......
-
Barrowman v. Niagara Mohawk Power Corp.
...of plaintiff had not been disclosed, the court properly granted plaintiff's renewed motion for preclusion (see, Brady v. County of Nassau, 234 A.D.2d 408, 650 N.Y.S.2d 802; Schoffel v. Velez, 118 A.D.2d 492, 493, 500 N.Y.S.2d The parties stipulated that plaintiff incurred medical expenses o......