Cioffi v. S.M. Foods, Inc.

• Decision Date: 10 August 2016
• Citation: Cioffi v. S.M. Foods, Inc., 2016 NY Slip Op 5742, 142 A.D.3d 526, 36 N.Y.S.3d 664 (N.Y. App. Div. 2016)
• Parties: Frederick M. CIOFFI, et al., appellants, v. S.M. FOODS, INC., et al., respondents, (and a third-party action).
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 526

36 N.Y.S.3d 664

2016 N.Y. Slip Op. 05742

Frederick M. CIOFFI, et al., appellants,

v.S.M. FOODS, INC., et al., respondents,

(and a third-party action).

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

Aug. 10, 2016.

Grant & Longworth, LLP, Dobbs Ferry, N.Y. (Jonathan Rice and Pollack, Pollack, Isaac & DeCicco, LLP [Brian J. Isaac and Kenneth J. Gorman] of counsel), for appellants.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for respondents S.M. Foods, Inc., GFI Boston, LLC, Ryder Truck Rental, Inc., PLM Trailer Leasing, and Daniel E. Burke.

White Quinlan & Staley, LLP, Garden City, N.Y. (Terence M. Quinlan of counsel), for respondents Atlanta Foods International, Russell McCall's, Inc., and Doug Jay.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated October 20, 2014, as granted those branches of the motion of the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay which were to strike certain discovery demands and denied that branch of their cross motion which was to preclude the defendants from offering certain evidence at trial, and (2) from an order of the same court dated March 4, 2015, which denied their motion for leave to renew and reargue their opposition to the motion of the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay to strike certain discovery demands, and denied that branch of their cross motion which was to preclude the defendants from offering certain evidence at trial.

ORDERED that the appeal from so much of the order dated March 4, 2015, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated October 20, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated March 4, 2015, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while he was conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19, 2008, the tractor trailer had been leased pursuant to a rental agreement to the defendant GFI Boston, LLC (hereinafter GFI), Burke's employer. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Ryder, GFI, Burke, and certain of GFI's corporate parents and principals, namely, the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay (hereinafter collectively the Atlanta defendants), to recover damages for personal injuries (see Cioffi v. S.M. Foods, Inc., 129 A.D.3d 888, 10 N.Y.S.3d 620 ).

The Atlanta defendants moved, inter alia, to strike certain discovery demands served by the plaintiffs. The plaintiffs cross-moved, inter alia, to preclude the defendants from offering certain evidence at trial on the ground that the defendants allegedly failed to comply with discovery orders and demands. In an order dated October 20, 2014, the Supreme Court granted that branch of the Atlanta defendants' motion which was to strike the plaintiffs' discovery demands to the extent of striking some of the demands identified in their motion. The court denied that branch of the plaintiffs' cross motion which was to preclude the defendants from offering certain evidence at trial. The plaintiffs moved, inter alia, for leave to renew their opposition to the Atlanta defendants' motion, and their cross motion. In an order dated March 4, 2015, the Supreme Court denied the plaintiffs' motion. The plaintiffs appeal from both orders.

“ ‘[A] trial court is given broad discretion to oversee the discovery process' ” (Maiorino v. City of New York, 39 A.D.3d 601, 601, 834 N.Y.S.2d 272, quoting Castillo v. Henry Schein, Inc., 259 A.D.2d 651, 652, 686 N.Y.S.2d 818 ; see Cioffi v. S.M. Foods, Inc., –––A.D.3d ––––, 36 N.Y.S.3d 475 [Appellate Division Docket No. 2014–00881; decided herewith] ; Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799, 23 N.Y.S.3d 352 ). Thus, “[t]he supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d at 799, 23 N.Y.S.3d 352 [internal quotation marks omitted]; see Gould v. Decolator, 131 A.D.3d 445, 447, 15 N.Y.S.3d 138 ; Ligoure v. City of New York, 128 A.D.3d 1027, 1028, 9 N.Y.S.3d 678 ; Daniels v. City of New York, 117 A.D.3d 981, 986 N.Y.S.2d 516 ). Nevertheless, this Court is “vested with a corresponding power to substitute its own discretion for that of the trial court” (Peculic v. Sawicki, 129 A.D.3d 930, 931, 11 N.Y.S.3d 653 ; see Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589 ; Brady v. Ottaway Newpapers, Inc., 63 N.Y.2d 1031, 1032, 484 N.Y.S.2d 798, 473 N.E.2d 1172 ).

Here, the Supreme Court properly granted those branches of the Atlanta defendants' motion which were to strike certain of the plaintiffs' discovery demands. A review of the record demonstrates that the court carefully reviewed the plaintiffs' discovery demands to determine which were relevant and proper and gave the parties detailed directions regarding their responses. We have reviewed the plaintiffs' demands and the order striking portions of those demands and perceive no improvident exercise of discretion.

The Supreme Court also properly denied that branch of the plaintiffs' cross motion which was to preclude the defendants from offering certain evidence at trial. Pursuant to CPLR 3126, 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,” the court may, inter alia, preclude that party from presenting evidence (CPLR 3126[2] ). Precluding a party from presenting evidence is a drastic remedy which generally requires a showing that the party's conduct is willful and contumacious (see Jennings v. Orange Regional Med. Ctr., 102 A.D.3d 654, 656, 958 N.Y.S.2d 168 ). “Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394 [internal quotation marks and citations omitted]; see Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 127 A.D.3d 911, 913, 7 N.Y.S.3d 361 ; Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 ; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196 ). “The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d at 686, 920 N.Y.S.2d 394 ; see Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612 ; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196 ; Savin v. Brooklyn Mar. Park Dev. Corp.,

61 A.D.3d 954, 954, 878 N.Y.S.2d 178 ).

Here, the defendants cannot be sanctioned for failing to respond to discovery demands which were ultimately stricken by the Supreme Court. As to the remaining demands, the plaintiffs have failed to demonstrate that any of the defendants acted willfully and contumaciously in violation of the court's orders. Accordingly, the court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was to preclude the...