Gokey v. DeCicco

• Decision Date: 01 December 2005
• Docket Number: 98385.
• Citation: 804 N.Y.S.2d 870,24 A.D.3d 860,2005 NY Slip Op 09176
• Parties: BRIAN GOKEY, Appellant, v. JAMES A. DeCICCO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 860

804 N.Y.S.2d 870

2005 NY Slip Op 09176

BRIAN GOKEY, Appellant, v. JAMES A. DeCICCO et al., Respondents.

98385.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 1, 2005.

Appeal from an order of the Supreme Court (Kavanagh, J.), entered June 2, 2005 in Ulster County, which granted defendants' motion to strike the complaint.

CARDONA, P.J.

Plaintiff commenced this action seeking damages for personal injuries he allegedly sustained when the vehicle he was riding in was struck from behind by a vehicle owned and/or operated by defendants. Based on plaintiff's subsequent failure to attend two scheduled independent medical examinations (hereinafter IME; see CPLR 3121), defendants moved to strike the complaint or, in the alternative, to compel plaintiff to appear for an IME (see CPLR 3126 [3]). Finding that plaintiff's failure to attend the scheduled IMEs was willful and "without any valid reason," Supreme Court granted defendants' motion and dismissed the complaint.

Although it is well settled that "[t]he nature and degree of any penalty imposed on a motion pursuant to CPLR 3126 is a discretionary matter" (Nabozny v. Cappelletti, 267 AD2d 623, 625 [1999]; see Zletz v. Wetanson, 67 NY2d 711, 713 [1986]), such a determination must be balanced against the "`general policy favoring the resolution of actions on their merits'" (Osterhoudt v. Wal-Mart Stores, 273 AD2d 673, 675 [2000], quoting Mrs. London's Bake Shop v. City of Saratoga Springs, 144 AD2d 749, 750 [1988]; accord Kinge v. State of New York, 302 AD2d 667, 669 [2003]). Indeed, the ultimate sanction of dismissal of a pleading should be reserved for those cases in which it is clearly shown that the failure to comply with discovery demands is the result of "`a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation'" (Altu v. Clark, 20 AD3d 749, 751 [2005], quoting Forman v. Jamesway Corp., 175 AD2d 514, 515-516 [1991]; see Matter of Beauregard v. Millwood-Beauregard, 207 AD2d 633, 633-634 [1994]; see e.g. Appler v. Riverview Obstetrics & Gynecology, P.C., 9 AD3d 577, 578-579 [2004]; Osterhoudt v. Wal-Mart Stores, supra at 673-674; Lawrence H. Morse, Inc. v. Anson, 251 AD2d 722, 723 [1998]).

In our view, although we appreciate and share Supreme Court's concern over the failure of a party to comply with discovery, outright dismissal of plaintiff's complaint was not warranted under the circumstances herein. While it is true that plaintiff failed to attend two scheduled IMEs, in light of plaintiff's proffered excuses and his expressed willingness to attend an IME at defendants' convenience, as well as his apparent compliance with other aspects of the discovery process (compare Osterhoudt v. Wal-Mart Stores, supra at 673-674) and the fact that defendants have not averred that they were unduly prejudiced by plaintiff's failure to attend the IMEs (compare Blake v. Chawla, 299 AD2d 437, 440-441 [2002]), we cannot conclude that plaintiff's conduct has risen to a level of obstinate disobedience deserving of the ultimate penalty. Rather, we find that a conditional order of dismissal is justified upon these facts. Accordingly, defendants' motion is denied provided that plaintiff appears for an IME within 45 days after service of...