Brannigan v. Door

• Decision Date: 23 November 2016
• Parties: James A. BRANNIGAN, respondent, v. Christie Overhead DOOR, et al., defendants, Jeld–Wen, Inc., appellant (and a third-party action).
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 959

43 N.Y.S.3d 365

2016 N.Y. Slip Op. 07918

James A. BRANNIGAN, respondent,

v. Christie Overhead DOOR, et al., defendants,Jeld–Wen, Inc., appellant(and a third-party action).

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

Nov. 23, 2016.

Hodgson Russ LLP, Albany, NY (Noreen DeWire Grimmick of counsel), for appellant.

Thomas F. Liotti, Garden City, NY, for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendant Jeld–Wen, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated August 6, 2014, as denied its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126 for the plaintiff's willful failure to comply with, among other things, a discovery order dated March 30, 2014.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the motion of the defendant Jeld–Wen, Inc., to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126 for the plaintiff's willful failure to comply with, among other things, a discovery order dated March 30, 2014, is granted to the extent of directing that the complaint be dismissed insofar as asserted against the defendant Jeld–Wen, Inc., unless, within 45 days after service of a copy of this decision and order by the defendant Jeld–Wen, Inc., upon the plaintiff, the plaintiff provides compliant responses to the interrogatories served by the defendant Jeld–Wen, Inc., in accordance with the discovery order dated March 30, 2014, and the motion is otherwise denied.

The plaintiff commenced this action against, among others, the defendant Jeld–Wen, Inc. (hereinafter the defendant), to recover damages for personal injuries that he allegedly sustained when he was struck by a garage door. The defendant served interrogatories in March 2012. The plaintiff submitted responses to these interrogatories in December 2012. The defendant objected to some of the plaintiff's responses and the plaintiff was directed to serve compliant responses to certain interrogatories in a series of four successive discovery orders issued by the Supreme Court over the next 1 ½ years. After the plaintiff failed to comply with the last of these discovery orders, which was dated March 30, 2014, the defendant moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126. The Supreme Court denied the defendant's motion. We reverse.

A court is authorized to impose disclosure sanctions, including the striking of all or a portion of a pleading, where 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 ; see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d 727, 728, 843 N.Y.S.2d 178 ). "The Supreme Court has broad discretion in making determinations concerning matters of disclosure" (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 209, ...