Farrell v. New York State Elec. & Gas Corp.

• Decision Date: 01 May 1986
• Citation: 120 A.D.2d 778,501 N.Y.S.2d 235
• Parties: John FARRELL, Appellant-Respondent, v. NEW YORK STATE ELECTRIC & GAS CORPORATION, Respondent-Appellant, and Herbert Poreda, Respondent. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 235

501 N.Y.S.2d 235

120 A.D.2d 778

John FARRELL, Appellant-Respondent, v. NEW YORK STATE ELECTRIC & GAS CORPORATION, Respondent-Appellant and Herbert Poreda, Respondent (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

May 1, 1986.

Michael W. Harris, Syracuse, for appellant-respondent.

Coughin & Gerhart (James P. O'Brien, of counsel), Binghamton, for respondent-appellant.

Chernin & Gold (Sam P. Monachino, of counsel), Binghamton, for respondent.

Smyk & Smyk (Stephen D. Smyk, of counsel), Binghamton, for Globe Silo, third party defendant.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

WEISS, Justice.

Cross appeals from an order of the Supreme Court at Special Term (Zeller, J.), entered May 16, 1985 in Chenango County, which, inter alia, granted the cross motion of defendant Herbert Poreda to dismiss the complaint against him and denied the cross motion of defendant New York State Electric & Gas Corporation to dismiss the complaint against it.

Plaintiff, who was employed by third-party defendant, Globe Silo Company, Inc., in the construction of a silo upon a farm owned by defendant Herbert Poreda, seeks recovery of damages alleged to have resulted from the negligence of defendant New York State Electric & Gas Corporation (NYSEG) and Poreda. During the construction, plaintiff came in contact with high voltage wires owned by NYSEG. Insofar as is pertinent on this appeal, Special Term granted Poreda's cross motion for dismissal of the complaint against him pursuant to CPLR 3126. Poreda made the cross motion due to plaintiff's failure to comply with a prior 30-day conditional order of preclusion requiring plaintiff to serve a verified bill of particulars and to comply with other discovery demands. Plaintiff has appealed. Also before us is NYSEG's cross appeal from Special Term's denial of its CPLR 3126 cross motion to dismiss the complaint against it for plaintiff's failure to provide various discovery items. Special Term's denial was made on the condition that plaintiff produce the discoverable items within 30 days of service of that order and also provide a written stipulation to reduce any award against NYSEG by $2,000 for the delay occasioned.

Initially, we reject plaintiff's attempt to attribute his default to the law office failure of his attorney, and find the permissible remedies afforded by the recent amendments to CPLR 2005 and 3012(d) inappropriate here (see, CPLR 2005, 3012[d], as added by L.1983, ch. 318, §§ 1, 2). Nevertheless, Special Term should not have dismissed plaintiff's complaint as against Poreda. Generally, the accepted rule is that CPLR 3126 sanctions for failure to comply with a preclusion order:

* * * require a willful refusal on the part of the adverse party to disclose information before the drastic remedy of dismissal or defense preclusion will be ordered * * *. The moving party's affidavit must prove conclusively that the failure to disclose was deliberate and contumacious (Town of East Greenbush v Ashland Chem. Co., Div. of Ashland Oil, 99 A.D.2d 604, 471 N.Y.S.2d 709 [citation omitted] ).

(See, Battaglia v. Hofmeister, 100 A.D.2d 833, 834, 473 N.Y.S.2d 838 [and cases cited therein].) In the absence of conduct "so blatantly contumacious as to require the ultimate penalty" (Spancrete...