Candela v. Kantor

• Decision Date: 11 October 2017
• Citation: Candela v. Kantor, 154 A.D.3d 733, 64 N.Y.S.3d 36 (N.Y. App. Div. 2017)
• Parties: Anna Iolanda CANDELA, appellant, v. Mitchell L. KANTOR, respondent.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 733

64 N.Y.S.3d 36

Anna Iolanda CANDELA, appellant,

v.Mitchell L. KANTOR, respondent.

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

Oct. 11, 2017.

McAndrew Conboy & Prisco, LLP, Melville, NY (Mary C. Azzaretto of counsel), for appellant.

DeSena & Sweeney, LLP, Bohemia, NY (Shawn P. O'Shaughnessy of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County(Diamond, J.), entered August 25, 2016, which denied her motion, in effect, pursuant to CPLR 3126 to preclude the defendant from offering into evidence at trial certain postaccident photographs and a transcript of an interview of the plaintiff by the defendant's insurer.

ORDERED that the order is affirmed, with costs.

On May 6, 2015, the plaintiff commenced this action to recover damages for personal injuries she contends she sustained on December 16, 2014, when her vehicle was struck by the defendant's vehicle.On December 7, 2015, the Supreme Court issued a preliminary conference order which, inter alia, directed the parties to exchange "statements of opposing parties and photographs" on or before January 19, 2016, and directed the defendant to provide the nonprivileged portion of the claims investigation, including photos and opposing party statements, with an end date for all disclosure of August 14, 2016.On February 23, 2016, the defendant, during his deposition, disclosed 10 digital photographs of his vehicle taken 10 days after the accident.On March 3, 2016, the defendant served on the plaintiff copies of certain postaccident photographs, including the defendant's 10 digital photographs, and the transcript of an interview of the plaintiff by the defendant's insurer.In July 2016, the plaintiff moved, in effect, pursuant to CPLR 3126 to preclude the defendant from introducing into evidence at trial copies of the postaccident photographs and the transcript of the plaintiff's interview on the ground that these items had not been timely disclosed.The court denied the plaintiff's motion.

The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court(seePesce v. Fernandez,144 A.D.3d 653, 654, 40 N.Y.S.3d 466;Krause v. Lobacz,131 A.D.3d 1128, 1128–1129, 16 N.Y.S.3d 601;Kanic Realty Assoc., Inc. v. Suffolk County Water Auth.,130 A.D.3d 876, 877, 14 N.Y.S.3d 138 ).Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (seeBrinson v. Pod,129 A.D.3d 1005, 1009, 12 N.Y.S.3d 201;Arpino v. F.J.F. & Sons Elec. Co., Inc.,102 A.D.3d 201, 210, 959 N.Y.S.2d 74;Zakhidov v. Boulevard Tenants Corp.,

96 A.D.3d 737, 739, 945 N.Y.S.2d 756 ).Willful and contumacious conduct may be inferred from a party's...